[Congressional Record Volume 150, Number 23 (Friday, February 27, 2004)]
[Senate]
[Pages S1887-S1890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PRYOR RECESS APPOINTMENT

  Mr. LEAHY. Mr. President, during the Presidents Day break in the 
Senate session, President Bush chose to act unilaterally to appoint 
William Pryor to the Eleventh Circuit Court of Appeals. Over the past 
few weeks, I have shared with the Senate three other divisive 
developments regarding judicial nominations: The Pickering recess 
appointment, the renomination of Claude Allen, and the theft of 
Democratic computer files by Republican staff. In spite of all those 
affronts, Senate Democrats cooperated in confirming two additional 
judicial nominees this year and continue to participate in hearings for 
judicial nominees. We have done so without the kinds of delays and 
obstruction that Republicans relied upon to stall more than 60 of 
President Clinton's judicial nominees.
  Today, I report upon the President's appointment of William Pryor in 
what the Democratic leader has properly termed an abuse of power. It 
was an abuse of the limited constitutional authority of the executive 
to make necessary recess appointments only when the Senate is 
unavailable. This is unprecedented.
  Actions like this show the American people that this White House will 
stop at nothing to try to turn the independent Federal judiciary into 
an arm of the Republican Party. Doing this further erodes the White 
House's credibility and the respect that the American people have for 
the courts.
  This is an administration that promised to unite the American people 
but that has chosen time and again to act in ways that divides us, to 
disrespect the Senate and our representative democracy. This is an 
administration that squandered the goodwill and good faith that 
Democrats showed in the aftermath of September 11, 2001.
  This is an administration that refused to acknowledge the strides we 
made in filling 100 judicial vacancies under Democratic Senate 
leadership during 17 difficult months in 2001 and 2002, while 
overcoming the September 11 attacks, the subsequent anthrax attacks and 
in spite of Republican mistreatment of scores of qualified, moderate 
judicial nominees of President Clinton.
  This is an administration that has once again demonstrated its

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unilateralism, arrogance and intention to divide the American people 
and the Senate with its controversial judicial nominations. With this 
appointment, the President is acting--as he has in so many areas over 
the past 3 years--unilaterally, overextending and expanding his power, 
with disregard for past practice and the rule of law.
  The recess appointment of Mr. Pryor threatens both the independence 
of the judiciary and the constitutional balance of power between the 
legislative and executive branches. We entrust to the stewardship of 
lifetime judges in our independent Federal judiciary the rights that 
all of us are guaranteed by our Constitution and laws. That is an 
awesome responsibility. Accordingly, the Constitution was designed so 
that it would only be extended after the President and the Senate 
agreed on the suitability of the nomination.
  The President has chosen for the second time in as many months to 
circumvent this constitutional design.
  I have sought in good faith to work with this administration for the 
last 3 years in filling judicial vacancies, including so many left open 
by Republican obstruction of President Clinton's qualified nominees. 
When chairman, I made sure that President Bush's nominees were not 
treated the way his predecessor's had been. They were treated much 
better, as I had promised.
  Republicans had averaged only 37 confirmations a year while vacancies 
rose from 65 to 110 and circuit vacancies more than doubled from 16 to 
33. Under Democratic leadership, we reversed those trends and opened 
the system to public accountability and debate by making home-State 
Senators' objections to proceeding public for the first time and 
debating and voting on nominations. We were able to confirm 100 judges 
in just 17 months and virtually doubled the Republican annual average 
with 72 confirmations in 2002, alone.
  I have urged that we work together, that we cooperate, and that the 
President be what he promised the American people he would be during 
the last campaign--a uniter and not a divider. I have offered to 
consult and made sure we explained privately and in the public record 
why this President's most extreme and controversial nominations were 
unacceptable. Our efforts at reconciliation continue to be rebuffed.
  Both these recess appointments are troubling. The President says that 
he wants judges who will ``follow the law'' and complains about what he 
calls ``judicial activism.'' Yet, he has acted--with disregard for the 
constitutional balance of powers and the Senate's advice and consent 
authority--unilaterally to install on the Federal bench two nominees 
from whom the Senate withheld its consent precisely because they are 
seen by so many as likely to be judicial activists, who will insert 
their personal views in decisions and will not follow the law.
  In the case of Mr. Pryor, he is among the most extreme and 
ideologically committed and opinionated nominees ever sent to the 
Senate. Mr. Pryor's nomination to a lifetime appointment on the Federal 
bench was opposed by every Democrat on the Senate Judiciary Committee 
after hearings and debate.
  It was opposed on the Senate floor because he appears to have 
extreme--some might say, ``radical''--ideas about what the Constitution 
should provide with regard to federalism, criminal justice and the 
death penalty, violence against women, the Americans with Disabilities 
Act, and the Government's ability to protect the environment on behalf 
of the American people. He has been a crusader for the federalist 
revolution. He has urged that Federal laws on behalf of the disabled, 
the aged, women, minorities, and the environment all be limited.
  His comments have revealed insensitivity to the barriers that 
disadvantaged persons and members of minority groups and women continue 
to face in the criminal justice system. He has testified before 
Congress in support of dropping a crucial part of the Voting Rights Act 
and has repeatedly described the Supreme Court and certain justices in 
overtly political terms. He received the lowest possible qualified 
rating from the American Bar Association--a partial rating of ``Not 
Qualified''--underscoring his unfitness for the bench.
  In sum, Mr. Pryor has demonstrated that he is committed to an 
ideological agenda that puts corporate interests over the public's 
interests and that he would roll back the hard-won rights of consumers, 
minorities, women, and others.
  Mr. Pryor's nomination was considered in committee and on the Senate 
floor. The Senate debated his nomination, and had enough concerns about 
his fitness for a lifetime appointment that two motions to end debate 
on his nomination failed. That is the constitutional right of the 
Senate.
  But President Bush has decided to use the recess appointment clause 
of the Constitution to end-run the Senate. As far as I know, this power 
has never been used this way before this President. Of course, this is 
the first President in our Nation's history to renominate someone 
rejected after hearings, debate and a fair vote by the Senate Judiciary 
Committee. He did that twice. He has now twice overridden the Senate's 
withholding of its consent after hearings and debate on judicial 
nominees. This demonstrates contempt for the Constitution and the 
Senate.
  The New York Times opined over the weekend about ``President Bush . . 
. stacking the courts with right-wing judges of dubious judicial 
qualifications'' and even the Washington Post editorialized that recess 
appointments of judges ``should never be used to mint judges who cannot 
be confirmed on their merits.''
  The recess appointments clause of the Constitution was not intended 
to change the balance of power between the Senate and the President 
that is established as part of the fundamental set of checks and 
balances in our government. Indeed, the appointments clause in the 
Constitution requires the consent of the Senate as just such a 
fundamental check on the executive. This was meant to protect against 
the ``aggrandizement of one branch at the expense of the other.''
  The clause was debated at the Constitutional Convention, and the 
final language--with shared power--is intended to be a check upon 
favoritism of the President and prevent the appointment of unfit 
characters.
  The President's claimed power to make a unilateral appointment of a 
nominee, Mr. Pryor, who the Senate considered and effectively rejected, 
slights the Framers' deliberate and considered decision to share the 
appointing power equally between the President and the Senate.
  This President's appointment of Mr. Pryor to the Eleventh Circuit--
after he was considered by the full Senate--seems irreconcilable with 
the original purpose of the appointments and recess appointment clauses 
in the Constitution. Perhaps that explains why the Pryor and Pickering 
recess appointments by this President are the first times in our 
centuries-long history that the recess appointment power has been so 
abused. No other President so acted. No other President sought such 
unilateral authority without balance from the Senate.
  The President chose to sully the Martin Luther King Jr. weekend with 
his unilateral appointment of Judge Pickering. Sadly, he chose the 
Presidents Day congressional break unilaterally to appoint Mr. Pryor. 
We resumed our proceedings in the Senate this week with the traditional 
reading of President George Washington's farewell address. The Senate 
proceeds in this way every year. I urge this President and those in his 
administration to recall the wisdom of our first President. George 
Washington instructs us on the importance of not abusing the power each 
branch is given by the Constitution. He urges the three branches of our 
government to ``confine themselves within their respective 
constitutional spheres.''
  He said more than 200 years ago words that ring true to this day:

       The spirit of encroachment tends to consolidate the powers 
     of all the departments in one, and thus to create, whatever 
     the form of government, a real despotism. . . . The necessity 
     of reciprocal checks in the exercise of political power, by 
     dividing and distributing it into different depositaries, and 
     constituting each the guardian of the public weal against 
     invasions by the others, has been evinced by experiments 
     ancient and modern. . . . To preserve them must be as 
     necessary as to institute them.

  The current occupant of the White House might do well to take this 
wisdom to heart and respect the constitutional allocations of shared 
authority that have protected our nation and our

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rights for more than 200 years so brilliantly and effectively.
  The recess appointments power was intended as a means to fill 
vacancies when the Senate was not available to give its consent; it was 
intended to ensure effective functioning of the government when the 
Senate adjourned for months at a time. It was never intended as an 
alternative means of appointment by the executive when the President 
chose to serve some partisan short-term goal by simply overriding the 
will of the Senate especially with respect to our third branch of 
government, the Federal judiciary.
  This administration and its partisan enablers in the Senate have 
again demonstrated their disdain for the constitutional system of 
checks and balances and for shared power among the three branches of 
our Federal Government. By such actions, this administration shows that 
it seeks all power consolidated in the executive and that it wants a 
Judiciary that will serve its narrow ideological purposes.
  Such overreaching by this administration hurts the courts and the 
country. President Bush and his partisans have disrespected the Senate, 
its constitutional role of advice and consent on lifetime appointments 
to the Federal courts, the Federal courts, and the representative 
democracy that is so important to the American people. It is indicative 
of the confrontational and ``by any means necessary'' attitude that 
underlies so many actions by this administration and that created the 
atmosphere on this Committee in which Republican staff felt justified 
in spying upon their counterparts and stealing computer files.
  After 8 years in office in which more than 60 judicial nominees had 
been stalled from consideration by Republican partisans, President 
Clinton made his one and only recess appointment of a judge. Contrast 
that appointment with the actions of the current President.
  President Clinton acted to bring diversity to the Fourth Circuit, the 
last Federal circuit court not to have had an African-American member. 
Judge Roger Gregory was subsequently approved by the Senate for a 
lifetime appointment under Democratic Senate leadership in the summer 
of 2001. This was made possible by the steadfast support of Senator 
John Warner, the senior Senator from Virginia, and I have commended my 
friend for his actions in this regard. When Judge Gregory's nomination 
was finally considered by the Senate it passed by consensus and with 
only one negative vote. Senator Lott explained his vote as a protest 
vote against President Clinton's use of the recess appointment power. 
How ironic then that Judge Pickering now serves based on President 
Bush's abuse of that power.
  Judge Gregory was one of scores of highly qualified judicial 
nominations stalled under Republican Senate leadership. Indeed, Judge 
Gregory and so many others were prevented from having a hearing, from 
ever being considered by the Judiciary Committee and from ever being 
considered by the Senate. Sadly, others, such as the nominations of 
Bonnie Campbell, Christine Arguello, Allen Snyder, Kent Markus, 
Kathleen McCree Lewis, Jorge Rangel, Carlos Moreno, and so many more, 
have not been reinstated and considered. But President Clinton did not 
abuse his recess appointment power. Instead, his appointment of Judge 
Gregory was in keeping with traditional practices and his use of that 
power with respect to judicial appointments was limited to that one 
occasion.
  By contrast, the current President has made two circuit recess 
appointments in 2 months and his White House threatens that more are on 
the way. These appointments are from among the most controversial and 
contentious nominations this administration has sent the Senate. After 
reviewing their records and debating at length, the Senate withheld its 
consent. The reasons for opposing these nominations were discussed in 
hearings and open debate during which the case was made that these 
nominees were among the handful that a significant number of Senators 
determined had not demonstrated their fairness and impartiality to 
serve as judges.
  Contrast Roger Gregory's recess appointment, which fit squarely in 
the tradition of President's exercising such authority in order to 
expand civil rights and to bring diversity to the courts, with that of 
Mr. Pryor. Four of the five first African American appellate judges 
were recess-appointed to their first Article III position, including 
Judge William Hastie in 1949, Judge Thurgood Marshall in 1961, Judge 
Spottswood Robinson in 1961, and Judge Leon Higginbotham in 1964.
  The recent appointments of Judge Pickering and Mr. Pryor stand in 
sharp contrast to these outstanding nominees and the public purposes 
served by their appointments.
  The nominations of Judge Pickering and Mr. Pryor were opposed by 
individuals, organizations and editorial pages across the nation. 
Organizations and individuals concerned about justice before the 
Federal courts, such as Log Cabin Republicans, the Leadership 
Conference on Civil Rights, and many others opposed the Pryor 
nomination. The opposition extended to include organizations that 
rarely take positions on nominations but felt so strongly about Mr. 
Pryor that they were compelled to write, such as the National Senior 
Citizens Law Center, Anti-Defamation League, and Sierra Club. Rather 
than bring people together and move the country forward, this 
President's recess appointment is another example of unnecessarily 
divisive action.
  Further, the legality of this use of the recess appointments power, 
without precedent and during such a short Senate break, is itself now a 
source of division and dispute. Recent Attorneys General have all 
opined that a recess of 10 days or less does not justify the 
President's use of the recess appointments power and would be 
considered unconstitutional. Starting in 1921, Attorney General 
Daugherty advised the President that he could make recess appointments 
during a mid-session adjournment of approximately four weeks but that 2 
days was not sufficient ``nor do I think an adjournment for 5 or even 
10 days can be said to constitute the recess intended by the 
Constitution.'' More recently, a memo from the Reagan administration 
Justice Department concluded: ``Under no circumstances should the 
President attempt to make recess appointment during intrasession recess 
of less than 10 days.'' This year, a Federalist Society paper noted the 
dubious constitutionality of appointments during short intrasession 
breaks.
  We will not resolve the question of legality of these recess 
appointments here today, but we can all anticipate challenges to 
rulings in which Mr. Pryor participates. Thus, we can expect this 
audacious action by the administration will serve to spawn litigation 
and uncertainty for months and years to come.
  I thank the Democratic leader for the statements he made this week in 
connection with the abuse of the recess appointment power by this 
President. I remind the Senate that a few years ago when President 
Clinton used his recess appointment power with regard to a short-term 
executive appointment of James Hormel to serve as ambassador to 
Luxembourg, Senator Inhofe responded by saying that President Clinton 
had ``shown contempt for Congress and the Constitution'' and declared 
that he would place ``holds on every single Presidential nomination.'' 
Republicans continued to block nominations until President Clinton 
agreed to make recess appointments only after Congress was notified in 
advance. On November 10, 1999, 17 Republican Senators sent a letter to 
President Clinton telling him that if he violated the agreement, they 
would ``put holds for the remaining of the term of your Presidency on 
all of the judicial nominees.''
  In November 1999, President Clinton sent a list of 13 positions to 
the Senate that he planned to fill through recess appointments. In 
response, Senator Inhofe denounced 5 of the 13 civilian nominees with a 
threat that if they went forward, he would personally place a hold on 
every one of President Clinton's judicial nominees for the remainder of 
his term. That led to more delays and to the need for a floor vote on a 
motion to proceed to consider the next judicial nomination, in order to 
override Republican objections.
  When President Clinton appointed Judge Gregory at the end of 2000, 
Senator Inhofe called it ``outrageously inappropriate for any President 
to fill a federal judgeship through a recess appointment in a 
deliberate way to bypass the Senate.'' When the Gregory

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nomination was confirmed with near unanimity under Senate Democratic 
leadership in 2001, Senator Lott's spokesperson indicated that Senator 
Lott's solitary opposition was to underscore his position that ``any 
appointment of federal judges during a recess should be opposed.''


                 PROGRESS OF FILLING JUDICIAL VACANCIES

  The American people understand that Democrats in the Senate have 
shown great restraint and extensive cooperation in the confirmation of 
171 of this President's judicial nominations. Republicans are loath to 
acknowledge that cooperation but with it this President has been 
achieving record numbers of judicial confirmations and we have reduced 
judicial vacancies to the lowest level in decades. Despite the 
unprecedented political upheavals and the aftermath of September 11, as 
of today, the Senate has already confirmed more judges than were 
confirmed during President Reagan's entire first 4-year term. Indeed, 
at this point in President Clinton's last term, only 140 judges had 
been confirmed, as compared to the 171 confirmed and two recess 
appointed by this President.
  The President's recent actions are unnecessarily divisive and 
harmful. We have already achieved much. If the President would work 
with the Senate, we could achieve so much more.

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