The Appointment Of Bolton Is Unconstitutional

[Floogeldy]

Article II, Section 2 of the Constitution states:

" . . . . 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."

The vacancy that Bolton is filling did not "happen during the Recess of the Senate." The vacancy happened prior to the recess.

I don't think I'm mincing words. When the Constitution grants specific powers to one of the branches, the language should be strictly interpreted, literally.

Bush has usurped his power by attempting to fill a vacancy that did not happen during the Recess!

[Silverhair]

1. Cool it! Clinton made over 140 recess appointments.

The precedence is extremely well established. By yelling about it we look like hypocrites when our guy did the same thing.

[gratuitous]

6. There are recess appointments and then there are recess appointments

By simply saying that "Clinton did it, too", we understate just what Bush has done with the Bolton investiture. For example, Chris Matthews used the "Clinton did it, too" excuse as it related to the appointment of an unnamed African-American to the Fourth Circuit Court of Appeals. The fact that Tweety didn't even name the appointee prompted me to do a little investigation as to the circumstances surrounding that particular appointment, and here's what I found:

The African-American (what, Tweety couldn't find the name Roger Gregory?) Clinton appointed to the Fourth Circuit was eminently qualified to be an appellate court judge, had years of experience, and his nomination was being held up for the simple reason of racism. Jesse Helms had prevented Gregory from even getting a hearing before the Judiciary Committee, let alone the now-sacrosanct up-or-down vote which the GOP suddenly deems to be so important.

Before Gregory's appointment, the Fourth Circuit Court of Appeals had an all-white panel of judges -- in fact, no black man or woman had ever served as a judge on the Fourth Circuit Court of Appeals. For a judicial circuit that covers the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina, it's pretty odd that no African-American defendant had ever had a chance prior to 2000 of having his appeal heard by someone whose skin color matched his or her own.

Gregory had been endorsed by both the Democratic (Robb) and Republican (Warner) Senators from Virginia, but it was Helms' obstinate opposition that denied him a seat on the federal bench. Helms went so far as to say that the people of North Carolina didn't care who was on the Fourth Circuit bench, that it was a picayune detail that mattered only to lawyers and newpaper editors. Helms made his delusional comments at a time when four of the 15 seats on the Fourth Circuit were vacant, and the seat that Gregory was appointed to fill had been vacant for over 10 years, a circumstance that had been called a "judicial emergency" by the Administrative Office of the United States Courts.

Compare and contrast the entirety of the respective records of Bolton and the unnamed Roger Gregory, and the "Clinton did it, too" parallelism between Bush and Clinton crumbles like a sand castle at high tide.

[indepat]

12. All parallels between good governance and this administration's actions

crumble like a sand castle at high tide: good governance is impossible when the entire ideology, agenda and actions of those in power are in opposition to every facet of good governance.

[AuntPatsy]

23. Thank you

[Silverhair]

25. How about researaching ALL 140?

You have chosen one and tried to make it representative of them all.

[gratuitous]

27. May I suggest you do your own research?

I took a suspicious-looking example that Chris Matthews used in a lame attempt to establish a fake parallelism, which caused me to check into it. I gave you my take on at least that one.

Do YOU have an example where Clinton appointed someone in recess who was as unqualified as John Bolton, who had gotten out of committee with no recommendation, who wasn't endorsed by any of his home state senators, and who was appointed during recess for a position that had been vacant for less than a year?

Knock yourself out.

[Silverhair]

28. I was responding to you ORIGINAL post.

You said it was unconstitutional. I disputed that.

I never claimed that Bolton was a good choice.

[gratuitous]

29. MY original post?

Where did I say it was unconstitutional? Although there's an argument to be made from the language of the Article that in this particular instance Bush's recess appointment is unconstitutional, I didn't specifically address that point.

Your last post responding to my post wanted to know about Clinton's other 140 recess appointments besides Roger Gregory. I guess I missed where you disputed my assertion that the Bolton appointment was unconstitutional.

[Silverhair]

30. Oops. Got you confused with the original poster the other guy.

In any case, Clinton made 140 recess apointments. Out of that many, some of them had to be pre-recess vacancies. I am NOT defending Bolton, but stating that by screaming about W making a recess appointment we are leaving ourselves wide open to the charge of hypocracy. And you can go back administration by administration and find the same thing.

[punpirate]

2. Fine--waste your time on this...

... law is settled about recess appointments. Why not concentrate on something of consequence?

You might think you can argue this matter, but, I can guarantee, you're wasting your time and energy.

Cheers.

[Floogeldy]

5. What "law" settled this issue?

BTW, I've got time to waste right now, thank you very much.

[merwin]

7. Agreed.. 'Settled law' should not stop you from trying to change something

Hell, it's not stopping the neocons regarding Roe-V-Wade

[punpirate]

9. Not up to me to educate you...

... look up the thousands of recess appointments in the last two hundred years and then find the court cases.

You're going to be disappointed.

Now, beyond this, I'll bet there have been twenty posts in the last twenty-four hours on precisely this subject, and virtually everyone knowledgeable on the subject has answered in exactly the same way as I have.

And you want to argue about it. Why? Because you've got time to waste?

[Floogeldy]

13. I love it when you talk about me, but . . .

. . . this issue is the precise language of the Constitution, which only allows presidential appointments to fill vacancies that happen during Recess.

Now, you can either ignore the simple language of the clause, or pretend something is constitutional simply because it has been a common practice, or both.

Knock yourself out, skippy.

[punpirate]

15. And you can ignore precedent all you like...

... you're still wasting your time.

If you really believe this is true, then I suggest you engage a Constitutional lawyer and file suit against the government. It's your money.

If you're not putting up your money, then it's just your opinion. And your opinion is less well informed than mine, and many others.

You knock yourself out. Put your money where your mouth is. Hire that lawyer and go to it.

Be sure to tell us how it turns out, too.

Cheers.

[Floogeldy]

19. Well, skippy . . .

. . . Mr. Well Informed, when I was in law school, we were taught that "precedent" comes down in the form of court case law with either binding or persuasive authority. The last time I checked, "precedent" did not mean "everybody has been doing it for a really long time now." So, if you want to show me precedent, show me Federal case law interpreting the clause in question.

Even before then, I was taught to read the English language. And I am quite confident that "Vacancies that may happen during the Recess" refers to Vacancies that may happen during the Recess, NOT Vacancies that may happen at some time other than during Recess.

But feel free to keeping pretending and kidding yourself.

[punpirate]

21. Spend your time and money...

... if you think your idea has merit.

And, the case law has precedent, and is settled.

You're the lawyer--you give me the case law.

Hell, yes, I can read the English language, too. I know what the Constitution says. But, it's settled. It's been done for hundreds of years, and you're not going to change it.

If you really believe that it's not settled, file suit against the government, as I said. And let us know how it turns out. That's where the rubber meets the road. Do it. Don't just talk about it. Do it. Don't lecture me. Do it.

You're the expert. You're the lawyer. Do it. If you succeed, you do us all a favor. If you don't, well, it costs you. But, I have no faith in your estimation if you don't file. If you're so sure, you must file, if only to save face. Let us know how it turns out.

If you don't file, and you have the capability to do so and the belief that you are right, then you're just not being honest about your assessment of Constitutional law, because you've ignored your obligations as an officer of the court.

If you're so sure, file. Do it now, for the sake of all of us.

Cheers.

[jobycom]

3. Yeah, well, so was Bush's appointment. It's a different world now.

[bvar22]

4. The Law may be established, but it is in need of REFORM.

"Recess Apointments" allows the Executive to thwart the "Will of the People" and should be severely limited, or removed.

Executive Pardons also need to go!

[merwin]

8. Has the law ever even been questioned?

[Floogeldy]

14. I'm going to find out.

:)

[Fiona]

17. Here's an article discussing it

http://www.senate.gov/reference/resources/pdf/RS22039.pdf

The supreme court has never decided the issue, but they have declined to hear appeals from circuit courts that upheld such appointments, thus letting the circuit court rulings stand.

[Floogeldy]

20. Thanks for the great info!

:)

[Jeff In Milwaukee]

10. The Senate is in recess...

Effective August 1 -- Bush can make the announcement whenever he pleases, so long as it's not "official" until the Senate goes into recess. And I read somewhere that a "recess" can be any period as short as a single day. It will be interesting to see, however, whether Bolton's appointment expires in at the end of the next Senate Session.

[bluedog]

11. reform the constitution...........no recess.appointments.no

NO........more electrorial college..these are outdated and do not work in the peoples interests!

[chimpymustgo]

16. None other than George Washington made the first recess appointment.

And it was a nominee (judge or justice IIRC) who could not get confirmed by the Senate. Heard a snippet on Diane Reim this morning.

[bluedog]

18. I heard also

but this waa when they had horse and buggy days.hard to get from place to place esp in the bad weather.this is no longer necessary......

[Jersey Devil]

22. Maybe we should ask Roberts

I realize of course that precedent is overwelmingly in favor of recess appointments in the event a position is open no matter when they occur, but isn't it ironic that Bush is pushing for judges who are not "activists" and for "originalists" who will strictly stick to the language of the Constitution? Because if you do then the recess appointment of Bolton would indeed be unconstitutional. Only an "activist" court could rule otherwise.

[ChiciB1]

24. Nice To Know... But Since When Have THEY Acted According To

any laws???

Gotta remember who you're talking about here. TWO FRAUDULENT ELECTIONS and you think they give a rat's ass about this law??

But you're very observant and it's nice to know. Thanks.

[DesEtoiles]

26. I researched this - over the years "happen" interpreted as "exist"