Conservatives have applauded President Bush’s recess appointment of Judge Charles Pickering Sr. to the U.S. Court of Appeals for the Fifth Circuit. Leftists, conversely, have condemned the White House’s end-run around the Senate filibuster that’s stalled Pickering’s nomination for nearly four years. I have to say, I can’t support the president’s decision here, not because I oppose Judge Pickering, but because this is a poor use of the recess appointment power.
A couple years ago, Howard Bashman and I got into a blog-debate over the constitutionality of recess appointing federal judges. Bashman argued that Article III judges must have life tenure, and that the recess appointment’s limited tenure creates an irreconcilable conflict with that requirement. I conceded the conflict, but argued the Framers clearly gave the president the ability to make any appointment via the recess clause, without regard to the other provisions of the Constitution. In the context of the early American government, this made perfect sense: Congress was generally in session only from December thru March, leaving as much as nine months between Senate sittings. Most federal district courts only had one judge in those days, making recess appointments a necessity to ensure a functional judiciary.
If the Fifth Circuit were in immediate need of a judge, then President Bush would be acting responsibly in making a recess appointment. But such an appointee should either be a temporary judge who will not be nominated for the permanent position, or a permanent nominee that the Senate is unlikely to oppose. Using recess appointments to exert political leverage over the Senate is irresponsible, albeit constitutional. Certainly this does nothing to mollify existing opposition to Judge Pickering.
But what of the fact Pickering’s nomination has not come to a vote because of the Democratic minority’s filibuster? Republicans argue this is an unconstitutional act that justifies the recess appointment. I disagree. The Constitution directs each chamber of Congress to adopt its own rules of proceeding. The filibuster is permitted under Senate rules, subject to a three-fifths vote invoking cloture. By itself, this is not a bad rule. The Senate traditionally permits unlimited debate to ensure the minority’s voice is not stifled. In recent decades, however, the Senate has used the filibuster to prevent debate rather than to ensure it. Now the mere threat of a filibuster prevents consideration of a nominee or legislation. This practice violates good parliamentary practice, but it is still constitutional, because the Senate can end this practice whenever it wants. That the Senate has not done so is a testament to the lack of leadership from the Republican majority, which could exercise its majority prerogative to simply bring Pickering’s nomination to a vote.
This is what’s known in Washington circles as the “nuclear option”, because it means ignoring the Senate rules’ own provision that no rule can be amended without the consent of two-thirds. Many scholars, notably Douglas Kmiec, argue the two-thirds rule is actually unconstitutional, because it binds succeeding senates to existing rules without permitting a simple majority to change them. I agree with this reasoning. If a simple majority simply ignored the filibuster rule—on grounds that there’s no actual debate taking place over Pickering’s nomination, merely obstruction—this decision would be sound parliamentary and constitutional law. Yes, the Democrats would object, but the presiding officer (a Republican) would overrule that objection, and it only takes a majority to sustain the chair’s decision on appeal. This would end the deadlock over judicial nominations in an instant, and if the Democrats are unhappy, then they can take it to the voters and ask for a majority of the Senate and the White House back.