RE: Recess Appointment for Pickering

[Scarberry, Mark]

It is a bit of a stretch to say that Judge Pickering was the subject of "TWO
prior Senate rejections." Neither "rejection" was by a vote of the full
Senate. The first was a party line vote in the Senate Judiciary Committee,
which refused to send his name on to the full Senate. That action has now
been reversed by the Senate Judiciary Committee. The second "rejection" is
an ongoing filibuster, necessitated only because a majority of Senators
would vote to confirm were they permitted to vote on his nomination.

The recess appointment is unlikely to alienate any of Senators who wish to
vote for Judge Pickering's nomination; there is little that it could do to
harden the position of the minority who already are refusing to allow a
vote.

One might more justifiably note the unprecedented use of filibusters by the
Democrats to block judicial nominees...

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] 
Sent: Friday, January 16, 2004 3:13 PM
To: [EMAIL PROTECTED]
Subject: RE: Recess Appointment for Pickering

Are any of my more learned list colleagues aware of a previous instance in
which a President used the recess-appointment procedure to appoint a judge
who had already failed to receive Senate approval (twice!) after ample
consideration by the Senate under its own rules?

I know Eisenhower appointed several judges (including Frank Johnson whom I
clerked for) by recess appts, even Justice Brennan (can't recall if any
other Eisenhower Justices were so appointed).

None of those appointments were controversial (at least not when made), yet
even then, the very popular and revered President Eisenhower got
considerable flak for doing this, or so I have heard, and my impression was
that later Presidents have not used recess appointments for judges at all,
or very rarely.  My impression is that recess appointments were intended as
a stopgap back in the old days when Congress met less often, communications
were much slower, and there might be a dire need to fill an office before
Congress next met.

Bush is evidently gambling that by January 2005, he will have a
filibuster-proof Senate majority, or perhaps a favorable change in Senate
rules by then, that will allow him to make Pickering's appointment
permanent.  This is, of course, technically in compliance with the
President's recess power.  But in spirit it seems a blatant abuse of any
notion of respect for a coordinate branch of government.  To use a recess
appointment precisely to bypass -- indeed, in an attempt to reverse -- TWO
prior Senate rejections of a nominee -- seems the sort of brazen abuse of
power and the rule of law we have become accustomed to under the Bush
regime, but which should still trigger outrage -- and it does mine!

Bryan Wildenthal
Thomas Jefferson School of Law


-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Steve Wermiel
Sent: Friday, January 16, 2004 1:39 PM
To: [EMAIL PROTECTED]
Subject: Recess Appointment for Pickering


And in yet another twist in the judicial confirmation battles:

Bush Installs Pickering on Appeals Court 

The Associated Press
Friday, January 16, 2004; 3:17 PM 

WASHINGTON - President Bush installed Charles Pickering on a federal appeals
court Friday, bypassing Democrats who had stalled his nomination for more
than two years, sources said.

Bush appointed Pickering by a recess appointment which avoids the
confirmation process. Such appointments are valid until the next Congress
takes office, in this case in January 2005.



Steve Wermiel
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