[Congressional Record Volume 146, Number 105 (Monday, September 11, 2000)]
[Senate]
[Pages S8337-S8339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. INHOFE. Mr. President, in 1985, when we had a conservative 
Republican in the White House by the name of Ronald Reagan, we had a 
Senate that was dominated by the Democrats. At that time, the Senate 
majority leader was a very distinguished Senator from West Virginia, 
Senator Bob Byrd.
  We found Ronald Reagan was violating the Constitution with recess 
appointments. Let me go back and give a little background of this. In 
the history of this country, back when we were in session for a few 
weeks and then they got on their horse and buggy and went for several 
days back to wherever they came from, if some opening occurred during 
the course of a recess, such as the Secretary of State dying, the 
Constitution provides that a President can go ahead and make a recess 
appointment and not rely on the prerogative of the Senate to confirm, 
for confirmation purposes. This is understandable at that time.

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  Since then, Republicans and Democrats in the White House have, when 
they were philosophically opposed to the philosophy of the prevailing 
philosophy in the Senate, made recess appointments.
  Ronald Reagan was doing this. I loved him, but he was violating the 
Constitution.
  Senator Byrd read and studied the Constitution. He sent a letter to 
the White House that said: If you continue to do this, then I can 
assure you we will put holds on all of your nominations. It wasn't just 
judicial nominations but all of them. I read from Senator Byrd:

       In the future, prior to any recess breaks, the White House 
     will inform the majority leader and (the minority leader) of 
     any recess appointments which might be contemplated in the 
     recess. They would do so in such advance time to sufficiently 
     allow the leadership on both sides to perhaps take action to 
     fill whatever vacancies might take place during such a break.

  Those were for anticipated vacancies.
  President Reagan agreed with this and sent a letter back to Senator 
Byrd saying he would do it.
  In June of 1999, the President made a recess appointment of someone 
who had not even gone through the committee process, had not given all 
their information to the appropriate committee in order to become an 
ambassador. He went in and appointed him anyway. I felt that was a 
violation every bit as egregious as anything Ronald Reagan had done.
  I took the same letter that Senator Byrd had sent to Ronald Reagan, 
and I sent it to President Clinton.
  I got no response until finally he realized I was putting holds on 
all these nominations. On June 15, 1999, President Clinton wrote a 
letter saying:

       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 wrote a letter back thanking him and was very complimentary to him 
for taking this action.
  A short while later--we were going into recess--along with 16 other 
Senators, I sent a letter to the President because we had heard rumors 
he was going to make several appointments, recess appointments. In 
fact, that is exactly what happened.
  I ask unanimous consent to have printed in the Record all this in 
more detail.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    Recess Appointments--Chronology

       1985 Byrd-Reagan Agreement: ``In the future, 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.'' (Emphasis added)--
     Sen. Robert Byrd (D-W.V.), 10/18/85.
       June 4, 1999 Recess Appointment: Without sufficient notice 
     in advance of the recess, President Clinton, on the last day 
     of the brief 5-day Memorial Day recess, granted a recess 
     appointment to controversial political and social activist 
     James Hormel to be U.S. Ambassador to Luxembourg.
       June 7, 1999 Inhofe Places Holds: Sen. Jim Inhofe (R-Okla.) 
     announced ``holds'' on all non-military nominees, demanding 
     Clinton's promise to abide by the Byrd-Reagan agreement on 
     all future recess appointments.
       June 15, 1999 Clinton Letter to Lott: ``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.''
       June 16, 1999 Inhofe Lifts Holds: Inhofe lifted his holds 
     on nominees, praising the President for agreeing to abide by 
     the Byrd-Reagan agreement in the future.
       Nov. 10, 1999 Senators' Letter to Clinton: ``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.''--Inhofe and 16 senators.
       Nov. 17, 1999 Inhofe Floor Speech: ``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 . . . It is not just me putting a hold on all 
     judicial nominees for the remaining year of his term, but 16 
     other senators have agreed to do that . . . 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 sand here and eliminate any doubt in the 
     President's mind of what we will do.''
       Nov. 19, 1999 Clinton Notifies Senate of Contemplated 
     Recess Appointments: In compliance with the Byrd-Reagan 
     agreement, Clinton provides a list--prior to the recess--of 
     13 possible recess appointments under consideration for the 
     Nov. 20-Jan. 24 intersession recess. Inhofe and others object 
     to five on the list who have holds or prospective holds on 
     their nominations. Eight are considered acceptable.
       Nov. 19, 1999 Inhofe Floor Speech 10 Minutes Before 
     Adjournment: ``If anyone other than these eight individuals 
     is recess appointed, we will put a hold on every single 
     judicial nonimee of this President for the remainder of his 
     term in office . . . I reemphasize, if there is some other 
     interpretation as to the meaning of the (Nov. 10) letter, it 
     does not make any difference, we are still going to put holds 
     on them. I want to make sure there is a very clear 
     understanding: If these nominees come in, if he does violate 
     the intent (of the agreement) as we interpret it, then we 
     will have holds on these nominees.''
       Nov. 23, 1999 Inhofe Letter to Clinton: In a spirit of 
     cooperation, Inhofe acknowledges one additional acceptable 
     appointment has been added to the list. ``I hope this makes 
     our position clear. Any recess appointment other than the 
     nine listed above would constitute a violation of the spirit 
     of our agreement and trigger multiple holds on judicial 
     nominees.''
       Dec. 7, 1999 Inhofe Privately Urges White House Not to 
     Violate Agreement: Notified by the Majority Leader's office 
     that the President was contemplating at least two recess 
     appointments (Weisberg and Fox) which were not included on 
     the list submitted in advance of the recess, Inhofe 
     reiterated that making these appointments would trigger a 
     hold on all judicial nominees.
       Dec. 9, 1999 Clinton Violates Agreement--Appoints Stuart 
     Weisberg to OSHA Review Commission: Name was not included on 
     list submitted in advance of the recess. Weisberg appointment 
     was strongly opposed by the U.S. Chamber of Commerce and the 
     National Association of Manufacturers. Weisberg is a liberal 
     advocate of expanded regulatory authority who had compiled a 
     controversial record of decisions consistently unfavorable to 
     employers.
       Dec. 17, 1999 Clinton Violates Agreement--Appoints Sarah 
     Fox to NLRB: Name was not included on list submitted in 
     advance of the recess. Fox is a stridently pro-labor former 
     Ted Kennedy staffer whose policy decisions were consistently 
     pro-union on such key issues as striker replacements, Davis-
     Bacon wage laws and the Beck decision of compulsory union 
     dues.
       Dec. 20, 1999 Inhofe Responds by Announcing Effort to Block 
     Judges: ``I am announcing today that I will do exactly what I 
     said I would do if the President deliberately violated our 
     agreement.''
       Jan. 25, 2000 Inhofe Places Hold on All Judicial Nominees: 
     ``It is in anticipation of just such defiance that I and my 
     colleagues warned the President on at least five separate 
     occasions exactly what our response would be if he violated 
     the agreement. We would put on hold on all judicial nominees. 
     So today it will come as no surprise to the President that we 
     are putting a hold on all judicial nominees. We are simply 
     doing what we said we would do to uphold Constitutional 
     respect for the Senate's proper role in the confirmation 
     process.''
       Feb. 10, 2000 Inhofe Hold is Overruled by Majority Leader 
     Trent Lott: Inhofe thanked the 19 Republican senators who, in 
     a key procedural vote, supported his effort to demand 
     presidential accountability. Those Senators were: Shelby 
     (Ala.), Murkowski (Alaska), Allard (Colo.), Craig (Idaho), 
     Crapo (Idaho), Grassley (Iowa), McConnell (Ky.), Bunning 
     (Ky), Grams (Minn.), Burns (Mont.), Smith (N.H.), Gregg, 
     (N.H.), Domenici (N.M.), Helms (N.C.), Ihofe (Okla.), 
     Thurmond (S.C.), Gramm (Texas), Thomas (Wy.), and Enzi (Wy.).
       August 3-31, 2000 Clinton Grants 17 Recess Appointments in 
     Defiance of the Senate: Rejecting his commitment to cooperate 
     with the Senate, Clinton grants appointments to Bill Lann Lee 
     and other whom the Senate specifically said were unacceptable 
     as recess appointments. Clinton's action was a deliberate 
     affront to the Senate, a violation of the spirit of the Byrd-
     Reagan agreement and an abuse of power undermining the 
     ``advice and consent'' clause of the Constitution.

  Mr. INHOFE. I would like to say we made it very clear to this 
President on two of the recesses since that time, that if he did not 
live up to the standards as were put in the letter by Ronald Reagan and 
to which he agreed, that we would put holds on all these nominations.
  Obviously, I had holds on these nominations. I have to admit it was 
not the Democrats; Republicans were not a lot of help to me at that 
time. They voted and overruled the hold that I had.
  I would say the Senators who voted with me at that time to uphold the 
Constitution were Senators Shelby,

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Murkowski, Allard, Craig, Crapo, Grassley, McConnell, Bunning, Grams of 
Minnesota, Burns, Smith of New Hampshire, Gregg, Domenici, Helms--as I 
said, Inhofe--Thurmond, Gramm of Texas, Thomas, and Enzi.
  In spite of the fact that that happened, they went ahead, the 
President went ahead and has continued to make recess appointments. The 
last time he did was during our August recess between the 3rd and 31st. 
He granted 17 recess appointments in just an arrogant defiance of the 
Senate's prerogative of advice and consent for confirmation purposes.
  Even though it is kind of an empty threat now, I will do it --I am 
announcing tonight I am going to put a hold on all judicial nominations 
for the rest of his term, not that there are that many, because if we 
stopped right now, there would still be fewer vacancies than were there 
at the end of the Bush administration. But when we took office, we 
swore to uphold the Constitution and the Constitution is very specific. 
Today I am making this announcement that we are going to hold up all 
judicial nominations. I am doing exactly what Senator Byrd would do 
under the same circumstances. I yield the floor.

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