[Congressional Record Volume 145, Number 163 (Wednesday, November 17, 1999)]
[Senate]
[Pages S14665-S14666]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. INHOFE. Mr. President, I wish to have a brief word about the 
issue of recess appointments.
  For quite some number of years, Presidents--Democrats and 
Republicans--have, in my opinion, violated the Constitution by making 
recess appointments. The Constitution is very explicit when it says 
that recess appointments can only be made in the event the vacancy 
occurs during the recess. There is a reason for this, historically.
  Back in the days when we were on horses and we had legislative 
sessions that might have lasted 1, 2, or 3 months, we found ourselves 
in recess more than we were in session. Therefore, on occasion it would 
be necessary for the Secretary of State, who may have died in office--
or when vacancies had occurred while we were in recess--to have to 
reappoint somebody. So we did. It made sense. But since that time--over 
the last several years--that privilege has been abused. As I say, this 
is not just an abuse that takes place by Republican or Democrat 
Presidents; it is both of them equally.
  Consequently, the Constitution, which says that the Senate has the 
prerogative of advice and consent, has been violated. It was put there 
for checks and balances. It was put there for a very good reason. That 
reason is just as legitimate today as it was when our Founding Fathers 
put it in there; that is, the Senate should advise and consent to these 
appointments. It means we should actually be in on the discussion as 
well as consenting to the decision the President has made by virtue of 
his nomination.
  In 1985, President Reagan was making a number of recess appointments 
that, in my opinion, and in the opinion of most of the Democrats and 
Republicans, was not in keeping with the Constitution. And certainly 
the majority leader at that time--who was Senator Bob Byrd from West 
Virginia, the very distinguished Senator--made a request of the 
President not to make recess appointments. He extracted from him a 
commitment in writing that he would not make recess appointments and, 
if it should become necessary because of extraordinary circumstances to 
make recess appointments, that he would have to give the list to the 
majority leader--who was, of course, Bob Byrd--in sufficient time in 
advance that they could prepare for it either by agreeing in advance to 
the confirmation of that appointment or by not going into recess and 
staying in pro forma so the recess appointments could not take place.
  In order to add some leverage to this, the majority leader, Senator 
Byrd, said he would hold up all Presidential appointments until such 
time as President Reagan would give him a letter agreeing to those 
conditions. The President did give him a letter. President Reagan gave 
him a letter.
  I will quote for you from within this letter. This was on October 18, 
1985. He said:

       . . . prior to any recess breaks, the White House would 
     inform the Majority Leader and [the Minority Leader] of any 
     recess appointment which might be contemplated during such 
     recess. They would do so in advance sufficiently to allow the 
     leadership on both sides to perhaps take action to fill 
     whatever vacancies that might be imperative during such a 
     break.
  This is exactly what we talked about. This is the reason President 
Reagan agreed to this. He gave a letter to Senator Byrd. Senator Byrd 
was satisfied.
  Along came a recess last May or June, and the President did in fact 
appoint someone he had nominated long before the recess occurred--in 
fact, not just months but even more than a year before that--and who 
had not complied with the necessary information in order to come up for 
confirmation. In that case, President Clinton did in fact violate the 
intent of the appointment process in the advice and consent provision 
found in the Constitution.
  I wrote a letter to President Bill Clinton. My letter said exactly 
the same thing the letter said from Bob Byrd to President Reagan in 
1985. It was worded the same way President Reagan's letter was worded. 
It said: Unless you will give us a letter, I am going to personally put 
a hold on all recess appointments.
  The President started appointing people. And I put a hold on all of 
them--it didn't make any difference; I put a hold on all nonmilitary 
appointments--until finally, I remember one time somebody said: Well, 
we have a really serious problem because we can't get confirmation on 
the President's nominee for Secretary of the Treasury. This could have 
a dramatic adverse effect on the economy. The value of the dollar could 
go down. All these things came into the picture. What are you going to 
do about that? I said: I am not going to do anything, but you had 
better tell the President about that because it is serious. Finally, he 
agreed to it.
  Mr. President, I ask unanimous consent that all of these documents be 
printed in the Record immediately following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. INHOFE. The letter finally came on June 15, 1999. I will read one 
sentence out of that letter.

       I share your opinion that the understanding reached in 1985 
     between President Reagan and Senator Byrd cited in your 
     letter remains a fair and constructive framework which my 
     Administration will follow.

  Once again, what is he following? He is saying, prior to any recess, 
the White House will inform the majority leader and the minority leader 
of any recess appointments which might be contemplated during such 
recess? Would they do so in advance sufficiently to allow leadership on 
both sides to perhaps take action to fill whatever vacancies might be 
imperative during such break? He agreed to it.
  I have not seen such a document, but I think in anticipation of the 
recess we are going in, it is my understanding that the President 
merely sent a list of some 150 nominees he has. Again, I didn't see it. 
It was never officially received by the majority leader. It was sent 
back to the White House.
  If he thinks this is a loophole in the commitment he made, it 
certainly is not a loophole.
  Anticipating that this President--who quite often does things he 
doesn't say he is going to do and who quite often says things that 
aren't true--is going to in fact have recess appointments, we wrote a 
letter. It is not just on my letterhead signed by me, but also I 
believe there are 16 other Senators saying that if you make recess 
appointments during the upcoming recess, which violates the spirit of 
your agreement, we will respond by placing holds on all judicial 
nominees.

       The result would be a complete breakdown in cooperation 
     between our two branches of government on this issue which 
     could prevent the confirmation of any such nominees next 
     year.


[[Page S14666]]


  I want to make sure there is no misunderstanding and that we don't go 
into a recess with the President not understanding that we are very 
serious about that. It is not just me putting a hold on all judicial 
nominees for the remaining year of his term of service, but 16 other 
Senators have agreed to do that.
  It would be very easy for the President to just go ahead and comply 
with that agreement he has in his letter of June 15, 1999, rather than 
feeling compelled to make judicial appointments during this recess.
  I want to serve notice to make it very clear.
  I received a letter from the President. He did not honor me with a 
personal letter. It came from John Podesta, Chief of Staff to the 
President. Without reading the whole letter, because it is rather 
lengthy, it says that they might not comply with this.
  I want to make sure it is abundantly clear without any doubt in 
anyone's mind in the White House--I will refer back to this document I 
am talking about right now--that in the event the President makes 
recess appointments, we will put holds on all judicial nominations for 
the remainder of his term. It is very fair for me to stand here and 
eliminate any doubt in the President's mind of what we will do.

                               Exhibit I

                                                      U.S. Senate,


                                Office of the Majority Leader,

                                    Washington, DC, June 10, 1999.
     Hon. William Jefferson Clinton,
     The White House, Washington, DC.
       Dear Mr. President: I appreciate our conversation this 
     morning, and our mutual desire to come to an understanding 
     about recess appointments. We have often worked together to 
     help promote the smooth operation of the government, and I 
     believe that we can once again come to an agreement.
       As you know, the recent recess appointment of the U.S. 
     Ambassador to Luxembourg has caused great concern to many 
     members of the Senate. I believe that it would be 
     constructive for us to reach an understanding in principle on 
     how we will now proceed to ensure that we avoid similar 
     sparring between the Executive Branch and the Senate in the 
     future.
       I agree that we will use the understanding reached between 
     President Reagan and Senator Byrd in 1985, cited by your 
     Chief of Staff today. That understanding, described in the 
     Congressional Record of October 18, 1985, states ``. . . 
     prior to any recess breaks, the White House would inform the 
     Majority Leader and [the Minority Leader] of any recess 
     appointment which might be contemplated during such recess. 
     They would do so in advance sufficiently to allow the 
     leadership on both sides to perhaps take action to fill 
     whatever vacancies that might be imperative during such a 
     break.''
       I believe that this is both a reasonable and a constructive 
     framework. Following this precedent will help us to proceed 
     in a cooperative and expeditious manner on future nominees.
       Mr. President, I appreciate your stated desire to work with 
     me on this issue, and I look forward to hearing from you 
     soon.
           Sincerely,
     Trent Lott.
                                  ____



                                              The White House,

                                        Washington, June 15, 1999.
     Hon. Trent Lott,
     Majority Leader,
     U.S. Senate, Washington, DC.
       Dear Mr. Leader: I was pleased to learn from your letter of 
     June 10 that you agree with my Chief of staff on the matter 
     of recess appointments. As Mr. Podesta indicated in his 
     letter to you, my Administration has made it a practice to 
     notify Senate leaders in advance of our intentions in this 
     regard, and this precedent will continue to be observed.
       I share your opinion that the understanding reached in 1985 
     between President Reagan and Senator Byrd cited in your 
     letter remains a fair and constructive framework, which my 
     Administration will follow. I also appreciate your view that 
     our nominees merit expeditious consideration through 
     bipartisan cooperation among Senators; I sincerely hope that 
     this spirit will prevail in the days to come.
           Sincerely,
     Bill Clinton.
                                  ____



                                                  U.S. Senate,

                                Washington, DC, November 10, 1999.
     The President,
     The White House, Washington, DC.
       Dear Mr. President: We write to urge your compliance with 
     the spirit of our recent agreement regarding recess 
     appointments and to inform you that there will be serious 
     consequences if you act otherwise.
       If you do make recess appointments during the upcoming 
     recess which violate the spirit of our agreement, then we 
     will respond by placing holds on all judicial nominees. The 
     result would be a complete breakdown in cooperation between 
     our two branches of government on this issue which could 
     prevent the confirmation of any such nominees next year.
       We do not want this to happen. We urge you to cooperate in 
     good faith with the Majority Leader concerning all 
     contemplated recess appointments.
           Sincerely,
         Jesse Helms, Wayne Allard, Michael Crapo, Michael B. 
           Enzi, Bob Smith, George Voinovich, Pete B. Domenici, 
           James M. Inhofe, Phil Gramm, Mitch McConnell, Craig 
           Thomas, Rod Grams, Tim Hutchinson, Conrad Burns, Chuck 
           Grassley, Richard Shelby.
                                  ____



                                              The White House,

                                    Washington, November 12, 1999.
     Senator James Inhofe,
     Senate Office Building,
     Washington, DC.
       Dear Senator Inhofe: Thank you for your recent letter of 
     November 10, 1999 on the need for cooperation between the 
     Legislative and Executive branches and the President's right 
     to recess appoint as defined by the Constitution.
       We appreciate and thank the Senate, especially the Majority 
     and Minority Leaders, for the 84 confirmations from Wednesday 
     November 10, which includes eight republican nominees 
     recommended by the Majority Leader. These confirmations 
     reduce the number of nominees awaiting confirmation to 153 
     for this year. While nominees wait an average of six months 
     to be confirmed, we thank you for confirming 62% of nominees 
     this year.
       We look forward to working with you on the 153 remaining 
     nominees and new nominations this session and next session. 
     They are important to the public, because they include 
     nominations critical to the safety of our citizens and the 
     integrity of our criminal justice system (US Marshals, US 
     Attorneys and judges).
       Compared with previous administrations, the President has 
     used his authority to make recess appointments infrequently. 
     President Reagan made 239 recess appointments. During 
     President Bush's four-year term, 78 persons were recess 
     appointed. We have made only 59 in 7 years, fewer than 
     President Bush in four years. Several of our recess 
     appointees have been republican nominees, done with the 
     cooperation of the Senate leadership.
       Because of the importance of filling these positions and 
     pursuant to an agreement with the Majority Leader, we 
     continue to notify the Majority and Minority Leaders of any 
     effort the President may make a appoint temporarily a person 
     into a vacancy, while awaiting confirmation by the Senate.
       We will continue to meet with the Majority Leader's Office 
     to accomplish our goal of confirming and appointing these 
     nominees. We want to cultivate a cooperative relationship 
     with you, and ask for your continued help in expeditiously 
     confirming nominees so important to the US public.
           Sincerely,
                                                     John Podesta,
                                  Chief of Staff to the President.

  Mr. INHOFE. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. Acting in the capacity of the Senator from 
Montana, I ask unanimous consent the order for the quorum call be 
rescinded.
  Without objection, it is so ordered.

                          ____________________