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A Judicial End Run
New York Times ^
| January 17, 2004
Posted on 01/17/2004 6:21:52 AM PST by John Jorsett
President Bush has used the only avenue remaining to him to install Charles Pickering Sr. of Mississippi on the Fifth Circuit Court of Appeals: a recess appointment, which avoids the confirmation process. That recess appointments are a perfectly legal device used by other presidents in the past does not make this appointment any more palatable. Mr. Pickering is absolutely the wrong choice for one of the nation's most sensitive courts.
Mr. Bush claimed that only a "handful" of senators had opposed Mr. Pickering. The opposition was in fact a good deal broader than that.
Mr. Pickering was rejected in 2002 by the Judiciary Committee when the Senate was still in Democratic hands. When the same committee, in Republican control, approved him last fall, the nomination was blocked by a filibuster. Another attempt on the president's part to win Senate approval of Mr. Pickering's nomination would almost certainly have produced the same result.
The reasons are clear enough. Over the years, Mr. Pickering has displayed skepticism toward cases involving civil rights and expressed doubts about well-settled principles like one person one vote. The Senate inquiry into the nomination uncovered troubling questions of judicial ethics. Mr. Pickering took up the case of a man convicted of burning a cross on the lawn of an interracial couple, urging prosecutors to drop a central charge and calling a prosecutor directly. He also seems outside the mainstream on abortion rights.
Mr. Pickering is not the only hard-right candidate Mr. Bush has pushed for high judicial office. But his nomination was among the most troublesome. As Senator Charles Schumer said, Mr. Bush's decision to bypass the Senate in this manner is "a finger in the eye" for all those seeking fairness in the nomination process.
TOPICS: Editorial
KEYWORDS: charlespickering
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To: jnarcus
If they wanted to do a recess appointment they should have chosen Rogers or Estrada...
What if the others didn't want a recess appt..... I haven't read it in any articles but some have indicated in post that the others turned down recess appts.... I don't know but I'd bet most wouldn't want one....
41
posted on
01/17/2004 10:16:06 AM PST
by
deport
(You BECOME 21, TURN 30, PUSH 40, REACH 50, MAKE 60, HIT 70 and then it becomes day by day)
To: jnarcus
It doesn't matter who was the first recess appointment. They're ALL 'extremists' as far as the Dems are concerned, and they'd have kicked up the same fuss if it had been anyone else. The public, which is mostly oblivious and relies on press accounts to formulate its viewpoint, would have swallowed it to the same degree.
To: B4Ranch; xzins; michigander
A recess appointment lasts until the end of the NEXT session of the Senate. In the case of Judge Pickering, that is January, 2005. Compensation for recess appointees is a matter of legislation, and is prohibited except under certain conditions, as quoted below and shamelessly stolen from "michigander" on a previous thread and copied below.
Judge Pickering falls under (a2) below. His nomination was pending before the Senate when the current recess began, but it had been prevented prevented from acting due to the filibuster. The exception to this noted in the first sentence appears to apply to a recess appointment made during a previous recess and still pending. Note that his name must be submitted for reconfirmation within 40 days of the beginning of the next session.
I do not know if this can be filibustered, but I suspect that there is neither a rule nor a precedent for doing so. And if this is the case, a ruling from the parliamentarian against a filibuster, with confirmation by a simple majority, would establish a referrable precedent for the future. Yes, this would take away a tool that republicans might regret not having in the future, but I am ready for it to be gone.
******
U.S. Code
TITLE 5
PART III
Subpart D
CHAPTER 55
SUBCHAPTER I
Sec. 5503. - Recess appointments
(a) Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply -
(1) if the vacancy arose within 30 days before the end of the session of the Senate;
(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or
(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.
(b) A nomination to fill a vacancy referred to by paragraph (1), (2), or (3) of subsection (a) of this section shall be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate
160 posted on 01/16/2004 2:41:59 PM CST by michigander
To: deport
The president can contract with the recess appointee to provide incidental non-legal, non-personal service. Through contracting, there's got to be a zillion ways to finesse this.
Other than that, it seems odd that a president in control of the house and senate couldn't make this happen in the area of funding.
44
posted on
01/17/2004 10:40:26 AM PST
by
xzins
(Retired Army and Proud of it!)
To: OpusatFR
If it had not been for the web, I would not have known Judge Pickering's true record You ain't kiddin' there! Today's Boston Herald (supposedly our conservative paper) ran a news story on Pickering's appointment, making him sound racist, then amplified with a lengthy quote from Ted "the Swimmer" Kennedy, and closed with a quote from Pickering himself -- as if there's no one in the whole wide world who held a different view from Kennedy. I am disgusted. The Herald has been getting worse and worse, but this takes the cake.
45
posted on
01/17/2004 10:43:14 AM PST
by
maryz
To: xzins
You're still misunderstanding the law. Pickering will be paid this year. If Bush has to do another recess appointment of him next year, then he would go without salary.
46
posted on
01/17/2004 10:48:04 AM PST
by
Dog Gone
To: MainFrame65; Dog Gone
Thank you
47
posted on
01/17/2004 10:54:09 AM PST
by
B4Ranch
(Dear Mr. President, Sir, Are you listening to the voters?)
To: cynicom
Bush installed his choice for Senate leader, Bill Frist. What we got was another limp wrist RINO with no guts to challenge the dems to a fulltime filibuster. Bush has only himself to blame. Frist has to get all the GOP to go along with him, and he only has a 51 seat majority, with recalcitrant senators. I used to blame Lott for the same, but I understand now what he is dealing with.
48
posted on
01/17/2004 10:59:37 AM PST
by
Hacksaw
(theocratic Confederate flag waving loyalty oath supporter)
To: maryz
Second your thoughts. Bump for the straight info
49
posted on
01/17/2004 11:01:50 AM PST
by
aBootes
To: xzins
He gets paid........ for this session until the recess appt ends in Jan. 2005.....
50
posted on
01/17/2004 11:04:58 AM PST
by
deport
(You BECOME 21, TURN 30, PUSH 40, REACH 50, MAKE 60, HIT 70 and then it becomes day by day)
To: John Jorsett
I knew this was coming. The NYT thinks it's just peachy to filibuster judicial appointments as long as they're Republican appointees. I hope this is just the first of many Bush recess appointments, although I suspect this is just a shot across the Democratic bow to see if he can shake loose some of the other blocked Senate votes. I agree, I hope Bush fills ever vacant judicial position over the next week.
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