Skip to comments.Time to play hardball on Estrada and other nominations
Posted on 04/25/2003 10:15:48 AM PDT by votelife
Recess Time With Senate Democrats taking obstructionism to new levels, the president should re-read Article II, Section 2, Paragraph 3. by Hugh Hewitt 04/23/2003 12:00:00 AM
Hugh Hewitt, contributing writer
THE LEFT EDGE of the Senate Democratic caucus has taken control of the judicial-nomination process and has forced the entire Senate into what is, at best, an extra-constitutional swamp. With their filibuster of D.C. Circuit Court nominee Miguel Estrada, their threatened filibusters of Fifth Circuit nominees Priscilla Owen and Charles Pickering, and their obstruction of other nominees such as John Roberts, Carolyn Kuhl, and a half-dozen Sixth Circuit nominees, Senate Democrats have decided it is good policy to wreck a judicial nomination and confirmation process that has worked for more than two centuries.
The radical agenda of the Senate Democrats has escaped a great deal of attention, though it surely played a role in their historic defeats in November 2002 and will do so again in the more than half-dozen referendums on incumbent Democratic Senators looming in November 2004. The temptation to let the likes of Tom Daschle, Harry Reid, Patty Murray, Blanche Lincoln, and Chuck Schumer hang themselves on their extremist approach must be huge, but President Bush and his advisers would be better served by aggressively defending the Constitution at every step. There are many ways to do this, including a jam-down of new Senate rules with 51 votes. But a way-station to such a melt-down is found in the president's recess appointment power.
Article II, Section 2, Paragraph 3 provides: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
Thus the president can fill every judicial vacancy that presently exists, though these appointments will lapse in the fall of 2004. Nominees have traditionally been reluctant to fill such temporary posts as the Senate guarded its confirmation power jealously and was likely to turn a cold-shoulder to the recess appointees in much the way that the NFL veterans shunned the temporary players who took the field during their strike.
Bill Clinton broke the taboo against recess appointments to the bench, however, with his end-of-term appointment of Roger Gregory to the Fourth Circuit Court of Appeals--an appointment President Bush made permanent through his nomination and the Senate's consent as a gesture of conciliation. That gesture and many others have been rejected as inadequate by the Leahy-Daschle-Schumer-Kennedy caucus. Kindness didn't--and won't--work. Stronger measures are called for, not only to meet real needs for judges, but also to bring the controversy to the public's attention. The Democrats have crashed the process and shredded the traditions because of the pressure of abortion absolutists. Their record is a sorry one, and attention generated via the recess-appointment power will help shine light on their excess.
At this writing there are 24 vacancies on the U.S. Courts of Appeals. The president would be wise not to launch too many recess appointments at first, but it would be a strong opening move to announce that, say, two of the six blocked nominees to the Sixth Circuit will be appointed over the Memorial Day Senate break if there is no movement with those nominees, and that the two vacancies without nominees on the D.C. Circuit (there are a total of four, with Estrada and Roberts having been nominated in May of 2001) will receive nominees in May and will be appointed during the holiday recess unless at least Roberts (and perhaps both Roberts and Estrada) gets a floor vote before then.
The Sixth Circuit nominees are all named, and two would have to volunteer for this sort of hardball, but the two D.C. open slots would be best used to serve up a couple of rock-ribbed conservatives who might be willing to serve 15 to 18 months for the good of the cause. With the freedom from pressure to conform to Chuck Schumer's strange reading of the Constitution, these two judges could provide an impressive legacy of opinions over their year-and-a-half of service. Readers are invited to suggest nominees to me from among the caucus of "They Couldn't Get Confirmed by This Senate in a Hundred Years" club because of their intellectual firepower. Perhaps Judge Bork hankers for a D.C. Circuit encore?
If the Senate radicals remain entrenched in their desire to overturn the Constitution, either the Senate can discipline itself with new rules or the president can increase the number of recess judges and announce a commitment to keep all such nominees on the bench through the recess process for as long as his power to extend their service endures. As Bill Clinton demonstrated, even a lame-duck president can employ the power just prior to his replacement's arrival. President Bush could keep using the recess power through December of 2004 even if defeated, and through December of 2008 if reelected.
This approach would announce a fundamental change in the nomination process, though a constitutional one. It would answer the Democrats' irresponsible absolutism with a measured and transparent reply. Conservative activists would be satisfied, as would moderate defenders of the clear design of the Constitution.
The battles over judicial appointments at home are not nearly as dramatic as those battles fought abroad, but the ability to wage the latter ultimately depends upon a healthy respect for the Constitution's rules at home. Democrats have abandoned that respect in their zeal to meet the demands of the abortion-rights caucus. The president should answer their challenge.
Hugh Hewitt is the host of The Hugh Hewitt Show, a nationally syndicated radio talkshow, and a contributing writer to The Daily Standard. His new book, In, But Not Of, has just been published by Thomas Nelson.
Increase Font Size
Email a Friend
Respond to this article
Subscribe to the magazine
I think there should hell hell-to-pay if they won't allow him one.
They may think they're winning on this but if "recent history" is any guide, BUSH will turn this against them. After all what they're doing is wrong. It may all come to a head when a Supreme Court opening comes up. It will become obvious to all that the DEMS just don't want BUSH to have the same power EVERY other President has had. This is unfair, unjust, and unstainable. Just let them try to hold court vacancies open indefinitly, it will not fly, except with their RADICAL base(that won't win them anything)
Let's see if this works:
Trent Lott can only accomplish so much without the backing of his fellow Republicans and some free thinking Democrats.
Do you agree with that statement?
Frist has accomplished nothing in four months as Senate Majority Leader. In fact, he has allowed Bush's tax cut to get cut in half by two Senators. TWO!
No. Recess appointments made now will expire at the end of the current Congress, which is the fall of 2004.
Recess appointments have to be renominated.
Based on his signing of CFR, I think Bush prefers to see the RATS hang.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.