Transcript

Bush Appoints Bolton to U.N.

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Sarah Binder
Senior Fellow, Governance Studies, Brookings Institution
Monday, August 1, 2005; 1:00 PM

President Bush appointed John Bolton ambassador the the U.N. today, bypassing the Senate in a move that will keep Bolton on the job until January of 2007. Senate Democrats were angered by the appointment, which came after months of controversy over Bolton's background and suitability for the post.

Read the latest: Bush Sidesteps Senate, Installs Bolton as U.N. Envoy .

Sarah Binder, an expert on Congressional procedure at the Brookings Institution and an associate professor of political science at George Washington University, was online Monday, August 1, at 1 p.m. ET to discuss President Bush 's recess appointment of John Bolton .

The transcript follows.

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Olney, Md.: Thank you for answering our questions today. I would like your opinion on two points:

Do you think that a recess appointment was actually a desirable outcome for this administration, considering that Bolton's confirmation hearing could have been much more damaging than the stigma or perceived weakness of being a recess appointment?

Also, I know this is not directly about Congressional procedure, but do you have an opinion on how this recess appointment might affect Bolton's efficacy?

Thank you.

Sarah Binder: Thank you for your interesting questions.

First, you raise an interesting point about the value of Bolton's recess appointment to the Bush Administration. The hearings and floor debate that occurred on Bolton's nomination certainly were not great press for the Administration's choice. Although the critics were primarily-- though not uniformly-- Democrats, the issues of Bolton's character and potentially involvement in intelligence failures surrounding the Iraq war did not do much to improve Bolton's public image or the Administration's case for the nomination.

So in many ways, yes, a recess appointment is not necessarily a costly action for the president.

Will the recess appointment affect Bolton's efficacy? That is certainly the received wisdom. I'm not so sure about that, however. First, we can't be sure that he would have remained in the position much more than the end of recess appointment in 2007, even if he had been confirmed by the Senate. Second, he goes to the United Nations now as the nation's representative. I think the issue of Bolton's policy positions and character likely pale in contrast to the conflicts between the U.S. and the U.N.

Thanks for your questions!

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New York, N.Y.: Recess appointments seem more common in the Bush administration than in previous administrations, particularly for administrations enjoying majorities in both houses of Congress. Is this perception correct? Also, is it unusual for such an important governmental position to be filled in this way?

Sarah Binder: You've raised two very interesting issues: trends in the use of recess appointments and the conditions under which they are used. Let's think about both of those questions here:

First, you are certainly correct that President Bush's use of recess appointments has outpaced that of Bush I an of President Clinton. If we calculate the number of recess appointments made per year in each of their terms, Bush I made 19 per year (over 4 years), Clinton made 18 per year (over 8 years), and GW Bush made 28 per year in his first 4 years in office. If we consider only recess appointments to full time positions (dropping part-time commissions, etc.), the numbers still show that Bush has resorted to the recess power more than his predecessors. Most striking, according to Congressional Quarterly data, is that his total number of recess appointments grew in each of the first four years of his administration.

As you point out, the use of recess appointments in a period of unified party control of Congress and the White House is pretty striking. I haven't seen a lot of evidence on this score, but my impression is that recess appointments are more common on divided party control. Makes sense of course-- the Senate is more likely to reject nominees in a period of divided government. Of course, Democrats' exploitation of the rules of debate (requiring 60 votes for cloture) changes the dynamic here.

Is it unusual for such an important position to be filled this way? Yes and no. There have been high profile recess appointments in the past. Supreme Court Justices William Brennan and Earl Warren come to mind. But when the recess appointment is used on high profile positions, it is typically used in what was arguably the Framers' intent: a stop gap tool until Congress returns to session. Bush appears willing to more aggressively use his recess appointment power-- a growing trend of recent administrations.

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Detroit, Mich.: How much precedent is there for such a recess appointment? Have Democratic presidents also done this to go around a Senate confirmation?

Sarah Binder: Thanks for your question. There is certainly historical precedent (recent, even) for Democratic presidents to use the recess appointment power in this way. President Clinton appointed James Hormel as Ambassador to Luxemburg in face of Senate intransigence (a "hold" placed by Senator James Inhofe). I believe President Kennedy originally gave Thurgood Marshall a recess appointment to the Supreme Court-- in part out of concern about opposition to an African-American advocate of civil rights by southern conservative senators. So, yes, there's precedent for this use of the recess power, though it seems a more often used and more visible tool now than in the past.

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St. Louis, Mo.: Will the Senate or House be able to countermand any of Bolton's activities while he is representing the United States in the U.N.?

Sarah Binder: Good question. Because the House and Senate are controlled by Republican majorities, I'm skeptical that Bolton's critics will get much traction in aggressively seeking to counter Bolton's activities at the U.N. If Congress were more aggressive in using its oversight powers, we might see some more scrutiny. But it remains to be seen how much attention the U.N. will receive from the foreign relations panels in Congress in the coming year.

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Campbell, Calif.: What is the origin of the filibuster and how constitutionally-enshrined is it? Is it really an implied power of the Senate?

Sarah Binder: Thanks for your question about the filibuster-- the procedural tactic that Democrats used to block Bolton' confirmation.

The filibuster exists because the Senate lacks a procedural motion that allows a simple majority to end debate and bring the chamber to a vote. (The House has the key motion-- the "previous question motion"-- and thus we don't see House filibusters.) Instead, the Senate relies on its Rule 22, that requires 60 votes to invoke cloture (i.e. end debate) and bring up a vote.

Is this constitutionally enshrined? Far from it! In 1806, the Senate cleaned up its rule book and dropped the previous question motion. No debate, no grand pronouncements about the value of unlimited debate. Once the rule was gone, senators decades later began to filibuster and there was no way to cut them off.

So was this constitutionally-enshrined? No. My humble opinion is that the filibuster in fact was a mistake-- the unintended consequence of a simple cleaning up of the chamber's rule book.

Thanks for your question!

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Las Vegas, Nev.: Can you please educate us on the recess appointment process and why the appointment is for such a long time instead of until Congress is in session again to go to a vote? Thank you.

Sarah Binder: Thanks for your question. The records of the Constitutional Convention unfortunately don't tell us all that much about the Framers' thinking in devising and designing the recess appointment in this way.

Most analysts though believe that the concept of the recess appointment was essentially created to ensure the continuity of the administration of government. That is probably why the Constitution refers to the appointment lasting until the "end of their [congress's] next session."

It's important to remember that for the first century or more of Congress's history, the Congressional calendar looked much different than it does today. Congress met many few months, and took extremely long recesses. (Would you have wanted to stay in D.C. without air conditioning? It's bad enough with the cooled air!) In fact, Congress typically met in March after the election and recessed shortly thereafter, returning in December. You can imagine that a recess appointment power was much more important to administrations before the early 20th century (at which point the modern calendar emerged).

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New York, N.Y.: Maybe this is a naive question, but why bother with confirmation hearings if the president can just appoint a nominee anyway?

Sarah Binder: Thanks for your interesting question. Congress not yet entirely abdicated its constitutional duty to provide advice and consent over nominations, even given the president's escape hatch through the recess appointment power.

Confirmation hearings provide an opportunity for senators to press their policy views and to try to extract commitments from administration nominees. In that sense, hearings are valuable to senators' policy agendas. Confirmation hearings also provide opportunities for position taking, an attractive political and electoral tool for senators. And the political parties can use (and do use) the hearings to bolster their party's reputations with the public (as the Democrats have tried to do with Bolton's nomination). So from senators' perspectives, confirmation hearings are valuable, regardless of the outcome.

From the president's perspective, recess appointments typically raise criticism and of course shorten the tenure of the nominee once in office. So, recess appointments are not ideal.

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Reno, Nev.: The Bush administration seems to have an agenda of expanding presidential power at the expense of Congress, particularly the Senate. This has played out over the push the change the rules of filibuster, etc. Do you think the Bolton appointment is simply in furtherance of this strategy? This recess appointment seems to be at variance of what was intended when the Constitution was written.

Sarah Binder: You have tapped a recurring theme of the current administration. In many ways, the administration has attempted to expand presidential power at Congress's expense (withholding information, for example, when requested). So in this sense, yes, the Bolton case fits neatly into that pattern. My hunch is that most experts would say that there were other strong viable candidates for the U.N. ambassador position, so sticking with Bolton was as much a political as a policy -motivated move.

My sense is that you are right about the character of Bush's use of the recess appointment-- circumventing a recalcitrant Senate minority. It is most likely at odds with what the Framers intended (though we don't know for sure, given the lack of much recorded debate on this at the Convention). It's important to remember in all of this that Bush is not the first of recent presidents to exploit the recess appointment power.

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Bethesda, Md.: This may be a silly question, but is there any way Congress can "veto" a recess appointment?;

Sarah Binder: There is no such constitutional option for Congress.

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New York, N.Y.: What happens in 2007 when Bolton's recess appointment "expires?" Can Bush again re-appoint Bolton via a recess appointment? Does the question of his continued tenure return to Congress for a vote?

Sarah Binder: Good question. Yes, Bolton could be renominated by the president, with the Senate called on to confirm him. So, the process would begin all over again.

There are some legal technicalities about the timing of the recess appointment and the renomination, however, that could affect whether Bolton could be paid-- if I understand these issues correctly. But in principle, yes, Bolton could receive another recess appointment.

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Philadelphia, Pa.: It's true that the filibuster isn't included in Article One of the Constitution, but that Article does give the Senate the authority to determine the "Rules of its Proceedings." Given the Senate's legacy as an institution that values giving strong-willed individual Senators anti-majoritarian power, what in particular makes you think the 1806 creation of the filibuster was just an inadvertent mistake that took on a life of its own?

Sarah Binder: Great question. You are absolutely correct that the Constitution grants the House and Senate the right to set their own chamber rules. So, yes, there are constitutional grounds for the Senate selecting whichever set of rules that it desires.

But I also believe from my digging in Senate history that there's a lot of myth about early senators' commitment to individual and minority rights. There seemed to have been an expectation in the first decades of the Senate that a majority was sufficient to pass legislative measures. Even the great senators of the 19th century preferred majority cloture-- Henry Clay, Daniel Webster and others fought for reinstating the previous question motion. Steven Smith and I have developed this argument further in our 1997 Brookings book: Politics or Principle? Filibustering in the United States Senate. A shameless plug, perhaps, but we try to address the types of very interesting questions you have raised.

Thanks!

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Tucson, Ariz.: I hope, with the confidence shown in him by the President, that John Bolton will rise to the occasion. He is certainly qualified. He is needed to get the United Nations back on track. If he can do so without losing his temper it will be a great appointment worthy of renewal.

Sarah Binder: Thanks for your observation. I suspect the press will be paying especially close attention to the new ambassador's public behavior once the General Assembly of the U.N. convenes in September!

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North Haven, Conn.: Now that Bolton is appointed, have any Dems called for a Congressional investigation into the disclosure form that was sworn to by him, and in which he failed to disclose his involvement with the Secretary of State investigator? Since there is Special Prosecutor in place, and a grand jury at least until October, any talk about calling for expanding his authority, to include whether or not Bolton lied under oath?

Sarah Binder: Thanks for your question. Quite a number of you have submitted questions about Bolton's admitted inaccuracies in his congressional testimony during his confirmation hearings before the Senate Foreign Relations Committee. As best I can tell, the immediate reactions of Democrats at the time the news appeared was to reinforce their opposition to Bolton's confirmation. Several Senate Democrats argued that this revelation meant that it was time for the president to pull the nomination.

But I haven't seen any subsequent discussion of the legal or political fall out. I'm afraid I'm not expert on legal matters about whether or not this would be grounds for perjury. We'll see whether these issues follow Bolton to NYC.

Many thanks for all your engaging questions!!

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Olney, Md.: Your answer to NY about a second recess appointment included a mention of re-nomination, which leads me to ask: can recess appointments be made if the person appointed has not been nominated at all? Or do they have to be at least sent to or voted out of committee?

Sarah Binder: Okay. One final question.

A person can be given a recess appointment, even if they have not been nominated. There are some legal technicalities though about whether the person can be paid, depending on the timing of the appointments, nominations, and other issues.

But no, there's no requirement for an appointee to be nominated first.

Thanks again.

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Washington, D.C.: In Bush's announcement, he referred to the 'handful' of obstructionist Democratic Senators who were holding up this nomination...which had the support of the majority of the Senate. Isn't that a rather unfair characterization, especially in light of Lincoln Chafee's recent declaration that he would not support Bolton if it turned out that he had not been completely forthcoming in his questionnaire (particularly re the Plame investigation). How many other Republicans had publicly voiced uncertainty or negativity regarding this appointment?

Sarah Binder: I was struck by the president's reference as well. It really was more than a "handful" of senators opposed. The cloture votes for Bolton received 42 and 38 votes in opposition. Interestingly, 3 Democrats voted for cloture.

In response to your interest in the positions of Republicans, only Senator Voinovich voted against cloture for Bolton (and did so both times). As you suggest, Senator Chafee expressed reservations, though he did not vote against cloture. Given that the news about the errors in Bolton's testimony had just emerged, it may be that more Republicans would have come out to urge the president to withdraw the nomination.

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Sarah Binder: Many thanks for all your interesting and challenging questions. I suspect today's news is not the last we hear about the president's new recess appointee! Thanks again.

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