[Congressional Record Volume 146, Number 155 (Friday, December 15, 2000)]
[Senate]
[Pages S11833-S11834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. LOTT. Mr. President, one note on these nominations and 
appointments:
  I understand that United States Presidents have for years had the 
ability to recess appoint nominations. I know of many instances going 
back at least to the 1950s. I also understand that many majority 
leaders--including Senator Byrd and Senator Mitchell--have had words of 
caution for Presidents of the United States when they were majority 
leader with respect to recess appointments. I know that this majority 
leader, as well as Senator Byrd, are very much concerned about recess 
appointments--especially appointments to the Federal judiciary--
during a period of time after we adjourn sine die, or at the beginning, 
frankly, of the year right as we go into the new administration. 
Congress has seen this area to continue to erode. I think we need to 
deal very aggressively with it. The Vacancy Act that Senator Byrd has 
worked on is something about which we need to be very serious. I hope 
this administration will heed these words of caution and understand the 
concerns of the whole Senate.
  I yield the floor.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. LOTT. I would be glad to yield the floor before we return it to 
Senator Lautenberg, if I might.
  The PRESIDING OFFICER. The Senator from New Jersey has the floor.
  Mr. LAUTENBERG. Mr. President, you do that job perfectly with 
diligence, for the record.

[[Page S11834]]

  I am happy to yield. In fact, I would be afraid not to yield to our 
distinguished Senator, my friend from West Virginia.
  Mr. BYRD. Mr. President, I thank the distinguished Senator. I will 
not speak long.
  Mr. President, the distinguished majority leader has made reference 
to recess appointments. Let me read what is in the Constitution. I read 
from section 2 of article II of the Constitution:

       The President shall have 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.

  Having been the majority leader in the Senate earlier in my years 
here, I have been very careful to caution Presidents not to make recess 
appointments during the recess of the Senate unless there is indeed an 
emergency that arises.
  That is the purpose of this. That provision in the United States 
Constitution is not put in there to enable any President, Republican or 
Democrat, to play games with the Senate, or to attempt to do a one-
upmanship simply because the Senate is out of session.
  I hope that Presidents, Democratic and Republican, will be very 
careful in filling a vacancy that ``may happen'' during a recess. That 
is the way the Constitution reads.

  I hope there is no effort to take advantage of those words by 
appointing someone to fill vacancies that have been in existence for 
some time. I especially hope that no administration will attempt to 
fill a Federal judgeship during the recess of the Senate. After all, a 
Federal judgeship is an appointment for life. That is not an 
appointment just until the end of the next session. Federal judgeships 
are, through the Constitution, for life tenure if they conduct 
themselves appropriately while in office.
  I want to say this: I am opposed to judgeship appointments during a 
recess. I hope that any President will proceed very cautiously and not 
attempt to take advantage of the situation by appointing judgeships 
during the recess of the Senate.
  How long will this Senate be in recess?
  Mr. LOTT. I say to the Senator from West Virginia, I believe we will 
be in recess slightly over 2 weeks, probably 17 days, until the new 
Congress comes in on January 23.
  Mr. BYRD. I can only see through my own eyes, but I don't consider 
that to be too long a time to await the appointment of a Federal 
judgeship or any other office, unless it should be Secretary of Defense 
or perhaps Secretary of State. But it is certain that there is no need 
to fill judgeships during this 2 weeks, or whatever it is. We will be 
back here. 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. We all play politics 
some, but we are fooling around a little too deeply with the fountain 
of politics. I hope we don't poison that well by attempting to pull a 
fast one here. Is that what the Senator is talking about?
  Mr. LOTT. I understand, of course, that is a possibility. We have not 
been notified of any recess appointments or any Federal judicial 
appointment during this recess period. However, I note it has been done 
in the past, and there has been some suggestion it could occur during 
the next 6 weeks before the next Inauguration.
  I want to check on exactly what would be the situation. I understand 
even a Federal judge's term would expire, depending on when it 
happened, at the end of the Congress, but there would be tremendous 
pressure then to reappoint that person. I agree with the Senator that 
any appointment of a Federal judge during a recess should be opposed, 
regardless of who they are or whether it is Republican or Democrat. I 
commit myself now to remember that when there is a Republican 
administration, as well as a Democratic administration.
  I do know there were Federal judges back in the early 1950s appointed 
by President Eisenhower. That was a mistake then, and it would be one 
now. I understand that could be contemplated. This word of caution on 
your behalf and on mine on behalf of the Senate, hopefully, will cause 
that not to happen.
  Mr. BYRD. Mr. President, if the distinguished majority leader will 
yield further.
  Mr. LOTT. I am happy to yield to the Senator.
  Mr. BYRD. I presume to offer the majority leader a suggestion, what I 
would do if I were in his place. I would write to the President and 
urge that no such recess appointment be made, and put it in writing, 
make a record of it. Furthermore, if I were the majority leader, I 
would talk with the administration.
  Mr. LOTT. I appreciate that.
  Mr. BYRD. I am not trying to tell the Senator what to do, but this is 
a serious thing with me. As for the politics of it, I am not talking 
Democratic politics or Republican. But there is such a thing as comity 
between the executive branch and the legislative branch. There is such 
a thing as the Constitution, and I happen to hold a copy in my hand 
right now. There is also such a thing as the prerogatives of the 
Senate. I try to defend those prerogatives.
  The Senator made a comment about recess appointments. I hope he will 
get some assurance. If there is any doubt in his mind--any doubt--that 
this administration or any other is going to try to make a recess 
appointment, especially of a Federal judgeship, while the Senate is out 
for these two or three weeks. I hope the Senator will get a commitment 
out of the administration, if he can, that that will not happen.
  That is going pretty far, in my judgment--to appoint a Federal judge 
for life ``during good behavior.'' I don't know whether there have been 
judges appointed during a recess of the Senate in the face of this 
provision which I have just read, to wit:

       The President shall have power to fill up all vacancies 
     that may happen during recess of the Senate by granting 
     commissions which shall expire at the end of their next 
     session.

  That is all I have to say. I have been concerned about that, I say to 
the distinguished majority leader. I have worked with the distinguished 
Senator from Tennessee, Mr. Thompson, and his committee, and a former 
Senator, who was the ranking member of that committee, John Glenn. We 
hammered out some legislation. I was concerned about the fact that the 
administration was appointing people who stayed in those positions for 
a year, for 2 years, for longer than 2 years, so we hammered out 
legislation and passed it in the Senate--the Vacancies Act.
  About 6 months ago, I asked Senator Thompson how the law was working. 
He indicated he would get back to me in answering my question at some 
point.
  I just happened to be here on this floor, during the comments of the 
majority leader and I can't stress too greatly my concern about recess 
appointments of Federal judges.
  I hope the majority leader, if he will pardon my presumptuousness, 
will try to get some understanding with the administration about that. 
That is the way I always did when I was majority leader: I got some 
understanding.
  Mr. LOTT. Mr. President, I say to the distinguished Senator from West 
Virginia, that is very good counsel. I will do that on a personal 
basis. I will also follow an example that I believe has been carried 
out in the past by Senator Byrd, maybe even by Senator Dole: In 
writing, get an understanding or some clarification. I will do that 
letter, and it will include this colloquy which just occurred.
  I thank the Senator for his comments, and I yield the floor.

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