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August 02, 2005

Could Bush pull a Bolton with Roberts?

President Bush's unilateral installation of John Bolton as Ambassador to the United Nations was an exercise of his constitutional authority to bypass the usual Senate confirmation process for presidential appointments when the Senate is in recess.  The power to make so-called "recess appointments" has long been a source of friction between the President and the Senate.

A couple of things seem worthy of note.  First, it is FAR from clear that the Constitution actually authorizes the President to do what Bush has done here (or what numerous other Presidents have done in the past).  The relevant portion of the Constitution reads: "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."  To me, anyway, the most natural reading of that sentence is that it applies only to "Vacancies" that "happen," that is, that come into existence, while the Senate is in recess (as, for example, when the incumbent dies during a recess).  That, of course, is not the situation with Bolton.  The U.N. Ambassadorship has been vacant for months, and the happenstance of the Senate going into recess during the vacancy does not mean that the vacancy "happened" during the recess.  For 200 years, however, Presidents have taken a much more liberal view of the "recess appointments" clause.  Maybe Bolton will piss someone off enough that the Supreme Court will finally have to address and resolve this issue.  (Although it's unclear who would have standing to bring the action - a Senator, maybe?)

Anyway, the more immediate question is this: could President Bush decide to install John Roberts on the Supreme Court via a recess appointment, if (as is beginning to seem increasingly likely) there is a standoff with Senate Democrats over the release of documents written by Roberts during his government service?  Seems to me the answer is "no," for reasons entirely unrelated to constitutional text (Supreme Court Justices Earl Warren, William Brennan, and Potter Stewart, among others, were initially installed via recess appointments).

The reason is that, according to Justice O'Connor's letter to the President, her resignation takes effect only "upon the nomination and confirmation of my successor."  (Emphasis mine.)  She is still a sitting Justice of the Supreme Court, and she will be until her successor is "confirmed."  That, of course, can happen only through the vote of the Senate.  So until Roberts (or someone else) is "confirmed," there is no vacancy, so a recess appointment is not possible in this case.  (The additional drawback, of course, is that recess appointments expire at the end of the Senate's next session, so a Justice installed by recess appointment must either face the Senate later or leave office.)

Of course, if it turned out that Roberts' nomination was stalled and O'Connor wanted to clear the way for a recess appointment, she could simply resign outright.  But it would be quite extraordinary for a sitting Supreme Court Justice to insert herself into a struggle between the executive and legislative branches in that way.  More likely, Judge Roberts will have to make his way through the Senate to reach the Supreme Court.

Posted by David at 10:52 AM in Law and Lawyers, National | Permalink


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David, I read somewhere that O'Connor's resignation upon confirmation clause might not be valid. The idea was that Bush couldn't nominate someone and the Senate couldn't confirm anyone unless there was a vacancy. And that would mean that O'Connor would have to have resigned.

Posted by: Abby | Aug 2, 2005 4:58:19 PM

I have seen similar comments, but the issue has never been resolved. As far as I know, everyone is going ahead on the assumption that it's OK for the President to nominate Roberts, and for the Senate to have hearings and votes, while O'Connor is still sitting. One thing is certain: O'Connor is still an active Justice, so she has not actually stepped down yet.

Posted by: David | Aug 2, 2005 6:13:05 PM

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