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Bush should use recess appointment power carefullyBy Noah S. Leavitt The July 4th holiday reminds us of lofty ideals drawn from the Declaration of Independence and the Constitution about the importance of democracy, participatory government and checks and balances. Similarly, Justice Sandra Day O'Connor's retirement announcement reminds us of the critical importance of the Senate's role in overseeing a president's nominees for high offices. Yet, this week, we may witness an action that undermines those cherished American values if President Bush does an end-run around Congress and installs John Bolton as the U.S. representative to the United Nations with a recess appointment. That cowardly action would insult Congress and the world, undermine U.S. credibility overseas and mock the democracy we celebrate. It would also sink Bush - who has the lowest approval rating of a second-term president since Nixon during the Watergate scandal - even further in the eyes of the American public. A controversial nominationIn March, Bush nominated Bolton, and confirmation seemed a sure thing. That was before the battle over federal judicial appointments - in which debate over the "nuclear option" of eliminating filibusters ended with a bipartisan compromise. Under the compromise, President Bush's nominees can and will be filibustered - but only "under extraordinary circumstances." That the compromise was struck was as significant as the bargain's terms. It demonstrated that opposition voices in the Senate could find traction in challenging the White House on appointments. It also energized Democrats to up the ante and look for other ways to challenge Bush. And if ever a nomination were ripe for challenge, it was Bolton's. As I detailed in a previous column Common sense suggests these attitudes will make Bolton an exceptionally poor U.S. representative to the United Nations. Yet, Bush repeatedly said Bolton is especially well qualified for the position, perhaps because Bolton's contempt for the body has convinced the president that he will not fall prey to the devious bureaucratic maneuvering at the organization. The White House has gone to extreme lengths to orchestrate this confirmation. According to last week's Baltimore Jewish Times, the White House has been quietly pressing American Jewish organizations to support Bolton, who was the architect of the 1991 repeal of an infamous 1975 United Nations resolution equating Zionism with racism. However, Jewish groups have put little, if any, energy into Bolton's campaign. they understand that a single achievement cannot erase an unbroken recent history of contempt toward the very institution at which Bolton would represent the United States. In addition to his views, Bolton's conduct is at issue. Bolton is suspected of using National Security Agency wiretaps to investigate rival diplomats in the intelligence field. When Senate Democrats requested information on whom he investigated, the White House resisted mightily. Bilateral oppositionWhat started out as a sure bet has brought considerable opposition from traditionally conservative sources. Twice, the Senate has been unwilling to break a filibuster over his nomination. And some Republicans who believe Bolton will do more harm than good to U.S. interests have voted against him. In particular, Ohio Senator George Voinovich has been a courageous and outspoken critic of Bolton and the White House's intransigence. According to a June 27 New York Times story, a number of prominent Republicans dislike Bush's recent tactics. They say that Bush overestimated how much of a mandate he had coming out of last year's re-election, underestimated Democrats' willingness to stand up to him and relied too much on a belief that he could force Congress into action by taking his case directly to the people. Even Bush's Southern strongholds may be turning on him. A major Alabama newspaper recently editorialized that "President Bush, who touts his down-home roots, should listen to Kenny Rogers' "The Gambler" for inspiration on how to address the continuing controversy surrounding his ambassador-designate to the United Nations. The paper counseled, "It's time to 'fold 'em' on John Bolton." Recess AppointmentsBush, the gambler, has one big trick up his sleeve -- the recess confirmation, which allows him to appoint Bolton over the Senate's wishes. The advice and consent clause in Article II, section 2 of the U.S. Constitution reads "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..." This language guarantees that the Senate can provide a check on Executive branch power, for it has the power to veto a president's choices Sometimes, this process may not be practical, or an emergency may arise, necessitating a more rapid response. In the framers' time, Congress met for much shorter periods, and transportation to Washington was slow and laborious. In a more modern context, suppose an executive branch official with security responsibilities died during a terrorist attack; the president may want to appoint an immediate, temporary replacement. Fortunately, the Constitution provides for such contingencies by stating that "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." In practice, when the session expires, the appointee either leaves office or stands for formal Senate confirmation. In Bolton's case, if he were a recess appointment, he would serve through December 2006. The world would be well-aware of his limited tenure and lack of Congressional support -- with the risk that Bolton would not be taken seriously by the diplomatic community during his term. There is no constitutional or statutory power that limits a president's recent appointment power. Accordingly, in 1993, a Department of Justice memo implied that recess appointments might be possible during a break as short as three days. However, the Congressional Research Service recently noted that, in the last 20 years, no such appointment has been made during a less-than-ten-day recess. It also notes that "appointments made during short recesses (less than 30 days), however, have sometimes aroused controversy, and they may involve a political cost for the president. Controversy has been particularly acute in instances where Senators perceive that the president is using the recess appointment process to circumvent the confirmation process for a nominee who is opposed in the Senate." Certainly, then, a recess appointment of Bolton would be intensely controversial. Despite the lack of limits on the recess appointment power, it wasn't meant to be used lightly. President Bush should reserve the power for its intended use: A true emergency. The larger contextThe United Nations has been rocked with trouble this year. There was the expensive, and likely criminal, oil-for-food scandal in Iraq. There were stories about peacekeepers sexually abusing young females in several war-torn nations. And there was the abomination of rights-abusing countries such as Zimbabwe, Saudi Arabia and Cuba gaining leadership positions on the Human Rights Commission. Secretary General Kofi Annan has proposed sweeping reform initiatives. Among his goals are to reform the General Assembly procedures, overhaul the Human Rights Commission and possibly reshape the Security Council. Unfortunately, it seems the U.S. will demand and force its own preferred reforms. On June 17, the U.S. House of Representatives passed the U.N. Reform Act of 2005. The law supports many U.N. reforms, some sensible, some sweeping and petty. It would stipulate that unless the United Nations complies with nearly all of the reforms, the U.S. must withhold half of its dues. (The United States, based on its share of the world's economy, covers almost ¼ of the total U.N. budget.) The House of Representatives' measure is based on the same principle as the Bolton nomination: America must punish and possibly destroy the United Nations to "save" it. Appointing Bolton would add injury to insult. His sledgehammer diplomacy would likely undermine many of these emerging, genuine reform efforts. An ugly symbolBush shouldn't repeat his past mistake of pushing through the wrong person at the wrong time. In 2004, on the eve of Martin Luther King Jr. Day, Bush exploited the Congressional recess to install Judge Charles Pickering Sr. from Mississippi in the federal appeals court seat to which Senate Democrats had twice blocked his confirmation. In 1994, Judge Pickering had gone to considerable lengths to reduce the sentence of a man convicted of burning a cross on the lawn of a mixed-race couple. The symbolism was appalling. So too, would the president's forcing Bolton -- with his isolationist philosophy and hostile view toward international law -- in during the July 4th holiday week just after a celebration of the United Nations' charter anniversary. Actions speak louder than words. A purported commitment to racial justice is undermined by a recess appointment of a man who bent over backwards to help racists. A purported commitment to spreading freedom and democracy is belied when a president despotically overrides Congress to install a U.N. representative hostile to the agency. It's worth remembering that the signers of the Declaration of Independence were fighting a tyrant whose univocal power was centralized in the British throne. They felt the need to declare that governments "derive their just powers from the consent of the governed." If President Bush exploits the recess appointment power to install Bolton, he will be thwarting the voice of the governed as expressed through Congress. The entire purpose of this move will be to ignore outside voices and impose presidential will. That would be no way to honor the 56 signers who fought so hard for our liberty. Noah Leavitt, a FindLaw 
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