Friday :: Feb 20, 2004

About Those Filibustered Judicial Appointments?


by Mary

Bush made his second recess appointment when Congress was on vacation by naming William H. Pryor Jr., the Alabama attorney general, to the 11th circuit court.

It was the second time in the last five weeks that Mr. Bush used a president's power to make appointments when Congress is not in session to name judges directly to the bench and thus skirt the Senate confirmation process. In January, Mr. Bush named Charles W. Pickering Sr., whose nomination had also been blocked by Senate Democrats, to another appeals court seat.

There was little dispute that Mr. Bush's actions in both cases were a calculated act of defiance of the Democrats with whom he has been engaged in an increasingly hostile battle over his judicial choices. Republican Senate officials suggested Friday that there may be more such recess appointments as a response to the Democrats' tactic of using filibusters or the threat of extended debates to block confirmation of the president's judicial nominees.

"A minority of Democratic senators has been using unprecedented obstructionist tactics to prevent him and other qualified nominees from receiving up-or-down votes," Mr. Bush said in a statement. "Their tactics are inconsistent with the Senate's constitutional responsibility and are hurting our judicial system."

President Bush is playing with fire here. His lapdog Senate Judiciary Committee Republicans are going down and it has the potential of tearing his little game apart. As Josh Marshall noted today, the case of the purloined Democratic Senate files is about to break wide open and it could spread out of the Senate into the Justice department and maybe even force the naming of a special counsel.

This week a trio of Republican senators on the committee felt compelled to hold a closed door meeting with conservative activists to tell them to back off. To quote The Hill: "[S]enators, who received last week a closed-door briefing on the investigation from Senate Sergeant at Arms Bill Pickle, warned conservatives they might come to regret their position when the results of the probe are fully known. Pickle is expected to finish his investigation by March 5."

Now here's where this gets interesting. The report from the Sergeant at Arms is coming down the pike really soon. (Let's call it the Pickle pike.) And most of the Republicans on the committee seem to agree now that this is a criminal matter, at least in the sense that there were probable illegalities committed. It's hard to see how that won't lead to a criminal referral when the report comes in.

So say a referral is made to the Justice Department. If that happens, how can they not appoint a special counsel? Not only is the issue at hand inherently political, but the political appointees at the DOJ work with the White House Counsel's office and the Judiciary Committee Republicans to plan and coordinate strategy for judicial nominations. The whole issue here is whether their colleagues on the Senate staff side were purloining Democratic staff memos to aid that planning. It seems like a classic case where the folks at Justice would need to recuse themselves.

Now we come to the White House Counsel's office. Remember, what we're talking about here is planning and strategizing on how to get judicial appointments through the Senate confirmation process. On the Republican side that involves Senate staffers, people at Justice, and the White House Counsel's office. Indeed, the whole process is quarterbacked out of the Counsel's office.

We already know that at least two Senate staffers accessed and archived the Democratic staff memos for more than a year. We know that thousands of documents were involved. And we know that the contents of at least some of those memos were leaked to conservative journalists. Those memos provided invaluable assistance in planning strategy on the Republican side.

How likely is it the existence and/or contents of those memos were discussed in the regular meetings Senate staffers held with members of the White House Counsel's office to plot strategy for getting through their judicial nominees?

And if a special counsel is appointed ... well, you see where this is going.

If this happens, will Bush be stupid enough to use his power to make more recess appointments?

Frankly, I think Bush's recess appointments can be used against him. What we need are some legal experts watching the cases that come before these recess appointees and what their rulings are and to make sure the public knows everytime they make a ruling that is clearly out of the mainstream. And then we package it up as soundbites for the campaign. As John Kerry said quoting President Bush, "Bring Em On".

Mary :: 11:30 PM :: Comments (6) :: Digg It!