Thursday, March 20, 2003


Were it only the ridiculous, unprecedented, and unconstitutional filibuster of Miguel Estrada's nomination, I would hesitate to call on the President to take what amounts to an unprecedented move to protect his presidential perogative to make judicial appointments. However, the actions of the Senate Democrats (see Byron York's excellent article on the escalation of this warfare by the Democrats here: "" ) has necessitated a bold action by a coordinate branch to protect its own sphere of power. For Democrats have turned 'advise and consent' in to 'veto power' as surely as the sun rises. And they are using that veto power with abandon. This is not what the Founders contimplated when giving the Senate this power, and the collegialism of that body has long since waned. Deference to presidential nominees has gone out the window. Since the Senate Republicans insist on retaining this strange change in the filibuster (effectively cedeing control over legislation to a 60 senator supermajority), the President is left but one option: recess appointments. It is important to note that such an action most certainly steps outside of the Founder's design and hence calling on its robust use in this manner can rightly be criticized. Two wrongs, it is said, do not make a right. But the fact is that the wrong that is being perpetrated by the Democrats is to effectively take away a power of the Executive, a coordinate, not subordinate, branch of the government. Hence the only redress of this attempt is to effectively retain that power in the Executive where the Founders contimplated it residing. The recess apppointment allows the president to sidestep the Senate Democrats' abhorent actions and pave the way for presidential appointments that are his not only by right, but by necessity (as the dearth of judges in various federal courts illustrates). But I do not argue for a sidestepping of the Senate wholesale. Indeed, to do so would be to commit the very crime that the Senate Democrats are perpetrating. The Senate has an advise and consent role, and it should have it. Thus I suggest that only recess appointments be granted to presidential nominees who succeed in achieving a 50 vote majority in a cloture vote on the filibuster of that nominees' appointment. In other words, the recess appointment would be only used to sidestep this unprecedented and extraconstitutional act creating a 60 vote margin for victory for judicial appointments. Judicial appoinments that are voted down on the floor, or who fail to get 50 votes in a filibuster (though a filibuster in such a case is highly the opposition would likely take the win on the floor). Thus this proposal retains the advice and consent role of the Senate, and merely allows the President to step past this ridiculous act by the Democrats. I hope he considers it and considers it well, as the power of the executive in the appointment of members to the judiciary is at stake.


Note: Didn't get a chance to see G&G yet, will review then.