Different River

”You can never step in the same river twice.” –Heraclitus

August 2, 2005

Recess Appointment

Filed under: — Different River @ 8:15 pm

So there was a controversial nominee who was supported by a majority of the Senate, but a vote on his nomination was blocked by filibuster by Senate Democrats led by Robert Byrd (D-WV) and others. The president made a recess appointment to get around the filibuster and put the nominee in office, essentially forcing the Senate to vote and confirm him once it reconvened the next year.

I bet you think I’m talking about President Bush’s appointment of John Bolton to be Ambassador to the United Nations — but in fact I’m talking about President Kennedy’s appointment of Thurgood Marshall to be a Judge on the United States Court of Appeals for the Second Circuit.

Of course, we are talking about principles here — Byrd and the other Southern Democrats opposed Marshall because he was black, but their opposition to Bolton is because he thinks the UN officials ought not to take bribes all the time. Obviously, support of corruption is way more principled than racism.

By the way, President Kennedy’s brother Senator Kennedy has something to say about all this:

Kennedy calls the bypass of the Senate “a devious maneuver that evades the constitutional requirement of Senate consent.” He says the president abused his power.

I’ll leave it to you to find out which recess apointment he is talking about here. As for “evad[ing] the constitutional requirement of Senate consent,” I would direct Senator Kennedy to his copy of the Constitution, in which Article II, Section 2, clause 3 states:

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.

So according to Senator Kennedy, exercising power explicitly granted in the Constitution is “”evad[ing] the constitution” — not to mention a “devious maneuver.” But of course using a filibuster — a power never mentioned or even contemplated in the Constitution — to block a majority of the Senate from granting the “advice and consent” mentioned in Article II, Section 2, clause 2 is not evading the Constitution.

Sometimes I wonder is Democratic politicians are using a different dictionary than the rest of us.

(Hat tip: Powerline, Joe Malchow.)

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