Don't Misunderestimate the President

Josh Marshall points to the president's constitutional power to make recess appointments to vacancies that otherwise would require a Senate vote to approve. Such appointments expire when the "recess" is over. Presumably the appointee would continue to serve until permanent replacement was approved by the Senate. If that person happened to be one and the same, then Senators opposing the "nomination" would have to vote against a candidate already doing the job.

In the battles over President Bush's judicial nominations, much has been said about using the so-called nuclear option to by-pass Democratic filibusters. But the president also has the power to place nominees on the bench immediately, regardless of the Senate by making recess appointments to fill judicial vacancies - including to the US Supreme Court.

The President's Recess Appointment Power is found in Article II, Section 2 and is challenged in just about every Presidential term or administration. In April 2003 President Bush nominated Alabama Attorney General William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit. A minority of Senators prevented an up-or-down vote for the nomination; the 53-44 vote in favor of limiting debate was short of a super-majority of 60 Senators that the Senate Rules require. With the nomination in limbo, the President used his recess appointment power to seat Attorney General Pryor on the court until the first session of the 109th Congress end in late 2005.

I came across something about this just after the election when Bush mentioned the name of Clarence Thomas as a candidate for Chief Justice upon the incapacity of Rehnquist. The article was speculating in general terms about an abortion litmus test, but the recess appointment power isn't concerned with little things like a nominee's qualifications or political viability. No, this is a political tool handed to the president by the framers to employ any which way he wants.

A positive spin on the recess appointment power would be that it was aimed at facilitating an orderly flow of government in the event of an untimely vacancy during a recess just as Senators might be stabling their horses after returning home for a break. But there is nothing to prevent a president from deliberately waiting for a "recess" to make an appointment without Senate approval.

Should the position of Chief Justice come available at the right moment, what would prevent a Clarence Thomas appointment to the job? Officially Rehnquist is just away from the workplace, not away from work. [Update: Rhenquist died September 3 during the August recess. Congress reconvenes September 6 after Labor Day. It will be an interesting 72 hours...] That is why he will be administering the oath of office at the inauguration. However, if he resigns or quits the job, for whatever reason, he could very well be replaced during a recess without Senate approval. If Mr. Justice Clarence Thomas were appointed to the job, even with the understanding that his appointment could be temporary, how might that affect his chances at future approval?

Would you like to be a Senator trying to explain to your black constituents why you didn't vote to confirm Clarence Thomas as Chief Justice after he was already doing the job?
Senators are good at talking, but that would be a tough piece of political salesmanship.

Nope.
This cowboy is no fool.

Update, October 3, 2005...
He didn't use the recess appointment to fill a seat on the Supreme Court, but he did send an ambassador to the United Nations by doing so. I'm not clear if John Bolton still has to be confirmed later, but I think not.
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Meantime, his nomination of Harriet Miers, his personal lawyer going back some twenty years, to fill the Supreme Court vacancy being created by the retirement of Sandra Day O'Conner has just been announced. The announcement is only hours old, but at this early stage it looks as though her confirmation will be a slam-dunk. This move indicates that all that "political capital" he bragged about after the election has been pretty well spent. (Uh, meaning "used up", not "spent wisely.")