RE: Recess Appointment for Pickering

[Scarberry, Mark]

Never in history has a party used the filibuster to block multiple judicial nominees. Never in history, as far as I know, has any circuit court nomination been filibustered. The only judicial nomination filibuster I'm aware of is the filibuster of Assoc. Justice Fortas's nomination to be Chief. I don't know whether his ethical problems were known at the time, but of course he later resigned from the Court under, to be charitable, an ethical cloud.   I disagree with those who think use of the filibuster here is unconstitutional, but it is far more unprecedented and abusive than the recess appointment of a single judge who is supported by a majority of the Senate. As for Judge Pickering's failure to receive 60 votes in his favor, I don't recall that being the constitutional standard for rejection of a nominee.   Finally, I don't think this list is the place to respond to political rhetoric like the claim that Democrats are only blocking nominations of "truly extreme rightwing nominees." Let me register my disagreement and leave it at that.   Mark S. Scarberry Pepperdine University School of Law   -----Original Message----- From: Bryan Wildenthal [mailto:[EMAIL PROTECTED] Sent: Friday, January 16, 2004 3:52 PM To: CONLAWPROF@lists.ucla.edu Subject: RE: Recess Appointment for Pickering   I appreciate Jeff Hirsch's answer to my historical question.  I was wracking my brain trying to remember if Clinton had recess-appointed Gregory.  All I could recall was that Bush had given him a permanent appt as part of a deal with Senate Democrats to get a few of his own early nominees through.   Just to prove I am consistent, I will now denounce Clinton's use of the recess power, though Bush's later endorsement of Gregory suggests that Gregory was more a victim of inaction (and possibly the very particular animus of Sen. Jesse Helms, who with his past history of race-baiting, was widely criticized for blocking the first black 4th Circuit judge) rather than any general opposition by Republicans as outside the mainstream of whom they could tolerate as a judge.   Senate Democrats just short of a majority have TWICE made it perfectly clear that they (rightly or wrongly) find Pickering unacceptably outside the mainstream.  Unlike with Gregory, there have been a committee vote against Pickering (when the Dems controlled the Senate) and a floor vote against (the failure to surmount the cloture rule under Republican control), accompanied by full and ample debate.  A failure to surmount the cloture rule is practically the same as a vote against, by virtue of the Senate's own rules.   Mark Scarberry's attempt to liken Bush's action to the Democrats' filibuster is inapposite.  Any complaints about the filibuster rule are properly directed to the Senate itself, now controlled by Republicans.  They can change it if they want (I would not question the power of a simple Senate majority to use the "nuclear option" of simply amending or repealing the filibuster rule), but we all know they won't, because Senate Republicans aren't stupid and know that in the long run they also benefit from the power to block certain majority actions they don't like.   Such use of the filibuster is also NOT without precedent.  In modern times, it was REPUBLICANS who pioneered the use of a filibuster to block a vote on a judicial nominee -- LBJ's nomination of Abe Fortas for CJ in 1968!  Republicans have now pioneered the use of presidential recess appointment to attempt to ride roughshod over the considered rejection by the Senate of a judicial nominee as too extreme, under Senate rules designed precisely to enable a large minority to prevent an outcome they honestly view as unacceptably extreme.   The Senate filibuster rule, unlike Bush's action, does not involve an abuse by one branch of government against  the prerogatives of another.  Bush has no more right to force the Senate as a body to confirm or even vote on his nominees, any more than the Senate has a right to force Bush to make a particular nomination.  The Senate's filibuster rules are purely internal to the Senate, well within the Constitution's express grant of power to that body to make its own rules for proceedings.   Somehow, the Republicans claim to be surprised and yelp "foul!" when Democrats turn around and use the same hardball tactics used by Republicans.  If Mark Scarberry thinks Bush's action will not "harden" Senate Democrats resistance to all Bush judicial nominations, I suspect he has another think coming.  "How much tougher could they be?" some might ask.  Just watch.  So far, Senate Democrats have waved through the overwhelming majority of Bush's nominees, only balking at a handful of truly extreme rightwing nominees.  There is technically nothing in current Senate rules to prevent Democrats from just slamming the door on ANY further Bush judicial appointments for this term, just as nothing in the Constitution technically prevents Bush from the outrage of this recess appointment.   Bryan Wildenthal Thomas Jefferson School of Law     -----Original Message----- From: Jeff Hirsch [mailto:[EMAIL PROTECTED] Sent: Friday, January 16, 2004 3:30 PM To: Bryan Wildenthal; [EMAIL PROTECTED] Subject: RE: Recess Appointment for Pickering Although I agree judicial appointments are not the best use of the President's recess power, it appears to been an equal opportunity abuse.  President Clinton used a recess appointment for Richard Gregory (Fourth Circuit), who was eventually confirmed after President Bush renominated him.  (see this link for Clinton's press release, which lists past recess appointments:  http://clinton4.nara.gov/textonly/WH/new/html/Fri_Dec_29_135529_2000.html).  I don't remember exactly, but I think the Senate simply bottled up his nomination. Jeff Hirsch >From: "Bryan Wildenthal" <[EMAIL PROTECTED]> >To: <[EMAIL PROTECTED]> >Subject: RE: Recess Appointment for Pickering >Date: Fri, 16 Jan 2004 15:13:24 -0800 > >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 >_______________________________________________ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >_______________________________________________ >To post, send message to [EMAIL PROTECTED] >To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Check out the coupons and bargains on MSN Offers!

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