The president’s ‘hole card’

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The recess appointment power allows a president to sidestep the Senate when it decides to not vote on a nomination, as in Bolton’s case, or when it simply never gets around to considering a nomination.

Under the Constitution, the recess appointment is temporary, lasting only until the end of the session of Congress, in Bolton’s case, until December 2007.

More than 3,000 appointed
Since George Washington, presidents have made more than 3,000 recess appointments to executive branch or judicial positions.

The justification for this power is that the very nature of the executive branch entails the ability to act. Arguably for some jobs the president can’t wait until members of Congress return to town from a recess or adjournment.

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Ordinarily a president will use the power after Congress has adjourned for the year, usually in December.

But presidents have made 285 recess appointments during intra-session recesses, that is, during short breaks when Congress leaves the Capitol for a week or two.

Legal scholars disagree about how long a recess must be in order to fit the intention of those who wrote the Constitution. Bill Clinton and other presidents have made recess appointments during nine- or 10-day breaks.

Republican assails Clinton
Recess appointments often cause friction between the president and Congress.

In the waning days of his presidency in late December 2000, when Clinton used the recess appointment power to put Roger Gregory on the Court of Appeals for the Fourth Circuit, Sen. James Inhofe, R-Okla., said it was ''outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate effort to bypass the Senate.”

The Senate had refused to act on Gregory's nomination prior to Clinton's recess appointment of him.

Bush has used recess appointments to place two judicial nominees, Charles Pickering and William Pryor, on the bench. Senate Democrats had stymied both men by filibuster threats.

Last October the Court of Appeals for the 11^th Circuit upheld Bush’s recess appointment of Pryor as a judge to that court. (Pryor recused himself from the decision.)

“For those who fear judicial recess appointments because the appointments bypass the Senate completely, we stress the obvious: The temporary judges lose their offices at the end of the Senate’s next session,” declared the eight-judge majority. Two judges dissented.

“I do not believe that the Constitution permits a president to frustrate in this way the careful separation of powers intended by the framers,” said dissenting Judge Rosemary Barkett.

After his re-election last November, Bush re-nominated Pryor, and the Senate, by a vote of 53 to 45, confirmed his nomination on June 9.

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