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December 3, 1999
The Free Congress Commentary
Clinton Philosophy: Forget the Constitution -- Win At All Costs
By John Nowacki
On November 19, Senator Inhofe announced that President Clinton
has sent a list of thirteen potential recess appointees to the Senate,
none of them judicial nominees. There are either holds or intended
holds on five of the nominations, according to Inhofe. One of those
controversial nominees, Bill Lann Lee, has been illegally serving
as Acting Assistant Attorney General for Civil Rights since December
15, 1997. At that time, Clinton justified Lee's appointment-which
was not covered by the Vacancies Act-by saying "I have done
my best to work with the United States Senate in an entirely constitutional
way. But we had to get somebody into the Civil Rights Division."
Article II, Section 2 of the Constitution grants the President
power to fill vacancies "that may happen during the Recess
of the Senate, by granting Commissions which shall expire at the
End of their next Session." Vacancies that occur while the
Senate is in session require the Senate's consent before they can
be filled. If a recess appointee is named to a position that became
vacant during a congressional session, that appointment is clearly
at odds with the plain language of the Constitution.
But that's just what is happening here. For example, the position
Lee occupies has been vacant for well over two years. When Clinton
couldn't get what he wanted from the Senate, he departed from the
"entirely constitutional way" that he had followed earlier.
And, since the Senate has still declined to confirm his nominee,
he is now prepared to veer even further from the Constitution.
This administration's "win at all costs" formula is becoming
a familiar theme. When the Republicans took control of the Congress
in 1995, Clinton embraced creative fundraising-necessary, to stop
the evil GOP agenda, we're told. When Clinton's affair with Lewinsky
and the problems with his Paula Jones testimony were becoming public,
he made the decision that "we're just going to have to win"-at
any price, apparently. And two years ago, pressing need-"We
just had to get somebody" into the position-excused a tenure
in office unauthorized by any law.
Senator Inhofe has led Senate opposition to improper recess appointments.
In June, he received Clinton's assurance that he would submit names
of potential recess appointees in writing, giving the Senate sufficient
time to take some type of action. A few weeks ago, Inhofe led seventeen
Senators in writing to Clinton and serving notice that any recess
appointments that "violate the spirit of [that] agreement"
would lead to holds on all judicial nominees. Inhofe repeated that
point in a floor speech on November 17, indicating that the time
for reasonable notice under that agreement had passed. Clinton then
submitted the list of thirteen, apparently on the 19th-about the
time the Senate was expected to recess.
In his speech two weeks ago, Inhofe backed off a bit. He said that
if anyone other than the eight non-controversial nominees from the
list of thirteen is recess appointed, "we will put a hold on
every single judicial nominee of this President for the remainder
of his term of office."
"I re-emphasize," he continued, "if there is some
other interpretation as to the meaning of the letter, it does not
make any difference, we are still going to put the holds on them."
Senator Inhofe should be commended for opposing recess appointments
clearly intended to circumvent the Senate's constitutional role
in consenting to appointments. It is unfortunate that he is not
taking a hard line against all unconstitutional recess appointments.
Nevertheless, it is great to see a Senator taking a stand on this
issue. The Senate should do whatever it takes to discourage unconstitutional
recess appointments. And hopefully, the threat of holds on judicial
nominations will be enough to dissuade Clinton from his ploy to
skirt the legitimate confirmation process.
John Nowacki is the Deputy Director of the Free Congress Foundation's
Center for Law and Democracy.
Contact: John Nowacki at 202-546-3000
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