Why the President Should Not Use A "Recess Appointment" To Make John Bolton the U.S. Representative to the U.N.

By NOAH S. LEAVITT

Monday, Jul. 04, 2005

The July 4th holiday is upon us, and with it comes lofty words - and ideals -- drawn from the Declaration of Independence, the Constitution, the Federalist Papers, and elsewhere --- about the importance of democracy, participatory government, and checks and balances. Justice O'Connor's recent retirement announcement also 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 also witness an action that completely undermines those cherished American values. We may watch President Bush do an end-run around Congress, and install John Bolton as the U.S. representative to the U.N., with a recess appointment.

That cowardly action would insult Congress and, indeed, the world. It would undermine U.S. credibility overseas. And it would make a mockery of the democracy we will be celebrating this weekend.

It would also sink President Bush - who currently has the lowest approval rating of a second-term president since Nixon during the Watergate scandal - ever further, in the eyes of the American public.

The Bolton Saga: A Very Controversial Nomination

In early March, President Bush nominated Bolton. At the time, confirmation seemed a sure thing - just another instance of the White House's going after what it wanted, and getting it, without hardly a squeak of protest.

But 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."

The simple fact 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, objective evidence establishes that Bolton has a longstanding disdain and lack of respect for the U.N. and international law.

Common sense suggests these attitudes will make Bolton an exceptionally poor U.S. representative to the U.N. Yet, President Bush has repeatedly said that Bolton is especially well qualified for the position - apparently because Bolton's contempt for the U.N. 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. Indeed, according to last week's Baltimore Jewish Times, the White House has been quietly pressing American Jewish organizations to speak out in favor of Bolton - who was the architect of the 1991 repeal of an infamous 1975 U.N. resolution equating Zionism with racism. Fortunately, however, Jewish groups have put little, if any, energy into Bolton's campaign. Doubtless, they understand that a single achievement - however laudable and important - cannot erase an unbroken recent history of contempt toward the very institution at which Bolton would represent the U.S.

And now, Bolton's conduct, as well as his contemptuous views, is directly 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 had investigated, the White House resisted mightily.

With Republicans and Conservatives Strongly Opposing Bolton, It's Time to Drop Him

It's not just Democrats who oppose Bolton: far from it. What started out as a sure bet has brought out considerable opposition, even 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 the President'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 Appointments: Their Constitutional Basis and Historical Use

Yet, Bush the gambler still has one big trick up his sleeve - the recess confirmation, which would allow him to appoint Bolton over and above 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' own time, Congress met for much shorter periods than now (it was in session less than half the year), and transportation to Washington D.C. was slow and laborious. In a more modern context, suppose an Executive branch official with security responsibilities is killed 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 confirmation by the Senate. In Bolton's case, if he were a recess appointment, he would serve through December 2006 before he either left, or stood for confirmation. Moreover, 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 the time that he served.

There is no constitutional or statutory power that limits a president's recent appointment power. Accordingly, in 1993, a DOJ memo implied that recess appointments might be possible during a period 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 - all the more so because the Bolton Battle is unfolding during what might be the most critical moment for the United Nations in the organization's history.

Despite the lack of limits on the recess appointment power, it's plain it wasn't meant to be used lightly - simply to push a controversial candidate through. President Bush admires justices like Scalia and Thomas who believe in the original intent of the Founding Fathers. But using the recess appointment on a nominee like Bolton would thwart the Founders' intent. President Bush should reserve the power for its intended use: A true emergency.

The Larger Context at UN: Why Bolton's Nomination Is So Crucial

The UN has been rocked with trouble this year. For instance, there was the expensive and likely criminal oil-for-food scandal in Iraq. There were many stories about peacekeeping forces sexually abusing young women and girls 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, and is currently preparing U.N. member states to debate these when they gather in New York in September. Among his goals are to reform the General Assembly procedures, overhaul the Human Rights Commission and even possibly reshape the all-powerful Security Council.

Unfortunately, it seems the U.S. will not only support and push for, but 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 some petty. And it penalizes non-compliance harshly: It would stipulate that unless the U.N. complies with nearly all of the reforms, the U.S. must withhold half of its dues. (The U.S. currently covers almost ¼ of the total budget for the UN, based on its portion of the world's economy.)

The House of Representatives' measure is based on the same principle as the Bolton nomination: America must punish and possibly destroy the U.N. - in order to "save" it. But it is the wrong time to take that attitude. Last week in San Francisco, at the United Nations' celebration of the 60th anniversary of its charter, nearly all the speakers admitted the need for extensive reforms. Indeed, throughout the U.N. system, reform is the topic of the conversation, and a growing number of members and staffers are open to such reforms.

But the U.S. prefers to compel, rather than converse. More than five months have passed during which it has not had a representative at the U.N., and the U.S. sent only a single, low-level functionary to San Francisco, while other member states sent high-level diplomats, and even heads of state.

Appointing Bolton would add injury to insult. His sledgehammer diplomacy would likely undermine many of these emerging, genuine reform efforts.

President Bush's Prior Recess Appointment Also Served As An Ugly Symbol

President Bush shouldn't repeat his past mistake of using a recent appointment to push through the wrong person, at the wrong time.

In 2004, on the eve of Martin Luther King Jr. Day, President 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 worse than ironic; it 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, and just after a celebration of the U.N. Charter's 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, and promoting self-governance, is belied when a President despotically overrides his own Congress to install a U.N. representative hostile to the U.N.

It's worth remembering, this week, that the signers of the Declaration of Independence were fighting a tyrant whose univocal power was centralized in the British Throne. They thus felt the need to declare that governments "derive their just powers from the consent of the governed."

Today --July 4th -- if President Bush exploits the recess appointment power to install John Bolton, he will be directly thwarting the voice of the governed - as expressed through Congress. Indeed, the entire purpose of this move will be to ignore outside voices - the voices of both the Constitution's Framers and modern commentators, of both Democrats and Republicans, of both conservatives and liberals, and of both other nations and this one - and, almost tyrannically, impose Presidential will.

That would be no way to honor the 56 signers who fought so hard for our liberty.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. He has worked with the U.N. in a variety of capacities. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.