By Thomas L. Jipping
President Clinton is leaving office the way he held office - abusing the Constitution for sport. By his latest partisan stunt, appointing Roger Gregory to the 4th U.S. Circuit Court of Appeals without the Senate's consent, Mr. Clinton has once again violated the Constitution, trashed the rule of law, and broken another promise. Accomplishing all this in one stroke is quite an achievement even for him.
In Article II, the U.S. Constitution gives the president 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.
These so-called recess appointments are a narrow emergency exception to the ordinary requirement of Senate consent. Increasingly, however, presidents have used recess appointments as a scheme for avoiding that consent requirement altogether. They ignored the Constitution's focus on when a vacancy occurs and focused instead on when a vacancy is filled in order to get appointments the Senate had denied them.
Under pressure from Senate Democrats, President Ronald Reagan promised in an October 1985 letter to inform the Senate "prior to any recess breaks of any recess appointment which might be contemplated during such recess to allow the leadership on both sides to perhaps take action to fill whatever vacancies that might be imperative during such a break." This promise brought the recess appointment exception back into proper use so the constitutional rule would prevail.
In four separate recess appointment episodes, however, Mr. Clinton has violated his oath to support the Constitution, broken his explicit written promises and injected racial politics into the judiciary.
In round one in June 1999, Mr. Clinton used a recess appointment to give James Hormel an ambassadorship that the Senate had chosen not to approve. The appointment was unconstitutional because the vacancy had not suddenly occurred during a recess but had been open for more than two years. Senate Republicans, led by James Inhofe of Oklahoma, blocked further appointments until, in a letter dated June 15, 1999, Mr. Clinton promised that "my Administration will follow the 1985 advance-notice policy."
In round two, Mr. Clinton in December 1999 made more recess appointments that not only violated the Constitution but, this time, his written advance-notice promise as well. Though Mr. Inhofe and 16 colleagues had vowed to block judicial appointments if Mr. Clinton broke his pledge, Senate Majority Leader Trent Lott prevented his colleagues from imposing any consequences.
In round three, Mr. Clinton in August 2000 made 17 recess appointments without advance notice. The group included Bill Lann Lee, appointed to be assistant attorney general for civil rights. Mr. Lee, however, was already on the job, having served in an acting capacity for nearly two years. An unconstitutional recess appointment of someone already on the job served only as the political equivalent of an obscene gesture toward the Senate.
Last month, as the Senate was about to adjourn, Mr. Lott said he was "very much concerned about recess appointments especially appointments to the Federal judiciary." Minutes later, former majority leader Robert Byrd said, "I am opposed to judgeship appointments during a recess. I will not support any administration, Democratic or Republican, that attempts to fill federal judgeships while the Senate is in recess. I think that is playing politics."
Which brings us to round four. By recess appointing Mr. Gregory, Mr. Clinton has again violated the Constitution by filling, without Senate consent, a vacancy that did not occur during a recess. In fact, this vacancy is a position created in 1990 that, because the 4th Circuit's workload did not require it, has never been filled.
Mr. Clinton has also injected racial politics into the judiciary. He has often nominated minorities with liberal records so that, when the Republican Senate objected on the merits, he could use the racist label to achieve confirmation of judicial activists who would otherwise be defeated. Here he also claims he is correcting an "injustice" by finally naming a black judge to a court without one. In addition to the alarming notion that judges somehow represent political constituencies, this step is intended to drive a wedge between minorities and the Republican Party.
Mr. Clinton also seeks to add fuel to the racial fire burning under the nomination of Sen. John Ashcroft to be the next attorney general. Mr. Ashcroft helped defeat the judicial nomination of Ronnie White, whose record as a state judge was so soft on crime that two-thirds of the states' sheriffs opposed him. But he was black. So now Mr. Ashcroft's principled opposition to a liberal judge is cast in purely racial terms and Mr. Clinton's recess appointment of Mr. Gregory is offered as more evidence that Republicans somehow won't confirm black nominees.
Mr. Clinton thinks he is politically immortal. He survived the scandals with his approval rating intact, and survived impeachment by remaining in office. He says he would run again and win a third term if only the Constitution were not in the way. By recess appointing Mr. Gregory, Mr. Clinton does the next best thing - he transcends the Constitution that blocks his path.
Neither a Constitution he had sworn to uphold, a promise he had put in writing, nor another branch of government with constitutional duties can contain him. This country and its constitutional freedoms are the less for it.
Thomas L. Jipping, J.D., is Director of the Free Congress Foundation's Center for Law & Democracy.
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