Sovay, who knows how irritated I was with the Julie Myers nomination some months ago, mentioned tonight that Bush had appointed her by recess appointment. I realize the administration has a lot on its plate, and probably is only too happy to avoid any fights it can. Also, it's obviously true that the opposition in Congress is given over to both excessive rhetoric, and knee-jerk refusal of anything Bush asks. That has to be exhausting.
Still, the 'advice and consent' part of the Constitution is not meant to be an empty letter. Recess appointments made a lot of sense in 1787, when the Senate might be out of session for months in order for members to travel home and back again. These days, there isn't anywhere in the world that's more than about 24 hours away from Washington, if you're rich and powerful enough to command a private plane -- for example, if you're a Senator.
Why, then, make use of the provision? ThisNation provides a good writeup on the process, and also the remedies available to the Congress if a President seems to simply prefer to avoid debates on his nominees.
While this provision is fairly straightforward, it has produced several differences of opinion between the Congress and the President. How many days must the Senate fail to convene for it to lapse into a recess? Does a position have to become vacant during a Senate recess for a valid recess appointment to be made or does the position simply have to remain vacant during the recess? Instead of allowing the Court to settle these disputes, the Congress and the President have generally agreed to work together to solve them. This makes sense because neither side has a particularly clear interest in forcing the issue. If the President tries to force recess appointments on the Senate, thus circumventing the normal "advice and consent" process, the Congress can refuse to appropriate funds to pay the salaries of the appointees. The Senate might also take the extraordinary measure of blocking future nominations to "teach the President a lesson." Furthermore, if the Senate took a hostile approach to all recess appointments, it would essentially have to remain in session all of the time--an inefficient solution, to say the least."Currently" obviously should be read "until recently." Myers has been subject to quite a lot of concern.
Currently, the President and Congress generally adhere to a procedure for recess appointments that minimizes the potential for interbranch conflict. If the President wishes to make a recess appointment or appointments, he generally sends a list of persons to be appointed to members of the Senate shortly before or during a recess. If Senators express serious concerns about a nominee, the President will likely hold off on the appointment until the Senate is back in session and the normal procedure can be followed.
Senator Joseph I. Lieberman, Democrat of Connecticut, said on Friday that Ms. Myers "really was not qualified for the position." Mr. Lieberman said Congress had intended the position to be held by someone with at least five years' management experience.Lieberman, at least, isn't one of the knee-jerk enemies of the President, although he does vote with his party more often than not. The Times, which is one of the knee-jerks, digs up a couple of Republicans to say bad things about her, and also a National Review editorial. They didn't quote me, but I had one or two or three things to say about it also. So did Froggy, who served as a Customs Special Agent -- that is, one of the people whom Myers will now be commanding. This isn't a case of the political opposition stonewalling out of spite. It's a case of genuine, serious concerns raised by allies as well as opponents of the President -- and the President choosing to simply ignore those concerns, and those allies.
"In my opinion, she lacks the management background," he said. "And one of her key responsibilities is to enforce immigration laws, and she has virtually no immigration experience."
Daniel K. Akaka, Democrat of Hawaii, echoed those concerns. "The head of I.C.E. should be an individual who has demonstrated extensive executive-level leadership and the ability to manage a budget through reorganizations and budget cycles," Mr. Akaka said. "Ms. Myers has not demonstrated this ability."
No wonder they want to avoid a debate. Here is the administration's defense against charges that Myers is an unqualified nepotism appointment:
"She's tried criminal cases and worked with customs agents on everything from drug smuggling to money laundering," Ms. Healy said. "So to say that Julie does not have the prerequisite experience to lead I.C.E., it simply ignores her extensive background working with law enforcement, immigration and customs."Here's a hint, in case you folks at the White House ever want to do this kind of thing again and there's not a handy recess. If you want to convince the public that your appointee is a highly qualified expert and not someone who is simply being promoted due to her political connections, don't have your spokeswoman call her by her first name. It says volumes that she's so close to the White House that they, reflexively and thoughtlessly, refer to her in the most familiar way.
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