Daschle: Recess in Peril

Judicial Appointments Again Scramble Schedule

Posted February 24, 2004 at 6:39pm

Setting up a potential showdown over the chamber’s mid-March recess, Minority Leader Tom Daschle (D-S.D.) threatened Tuesday to use parliamentary maneuvers to prevent the Senate from adjourning for any period of time that would open the door to presidential recess appointments.

“We may look differently on recesses in the future as to whether or not we ever vote to recess again,” Daschle said, angrily reacting to two recess appointments in January and February of judicial nominees previously blocked by Democratic filibusters.

Republican leaders dismissed the idea that Daschle would follow through with the parliamentary tactics needed to prevent a formal recess from happening, mostly because his own caucus would want the opportunity to get home to their states. “I’d find it hard to believe,” said Majority Leader Bill Frist (R-Tenn.), who noted he held 62 meetings over the Presidents Day recess.

To block a recess, Senate Democrats would have to object to a unanimous consent request to adjourn for recess, which would then force Frist’s hand.

Frist could then force a vote to try to defeat Daschle’s objection, but Democrats would likely respond by filibustering Frist’s motion, which would require Frist to gain 60 votes to move to a recess.

If he follows through on the threat, Daschle’s ultimate goal would be to enter into a negotiation with Frist that would allow Senators to return home for their recess but keep the chamber officially open, a move that requires a pro forma session every third day. Under that scenario, President Bush would not be able to make a recess appointment, something he did in mid-January when he appointed Charles Pickering to the 5th U.S. Circuit Court of Appeals and again last week when he appointed Alabama Attorney General William Pryor to an 11th Circuit post.

“We don’t have to recess when we depart the Congress,” Daschle said. “There are other ways to address the issue of our need to be in our states and maybe that is something that we may consider doing.”

The first recess battle could come in less than three weeks, with the Senate slated to take an unusual mid-March recess the week of St. Patrick’s Day. The chamber is scheduled to adjourn by March 12 and not return until March 22.

The chambers have been kept open for pro forma sessions in the recent past, including during a 1980s fight Congressional Democrats had with President Reagan over recess appointments and also during the government shutdown of late 1995.

While Senate Democrats echoed Daschle’s anger over recess appointments and suggested they’d back his attempts at blocking a recess, Republicans argued it was Democratic filibusters that forced Bush’s hand.

The appointments of Pickering and Pryor were a “logical extension of the unprecedented obstructionism that Senator Daschle brought to the Senate floor,” said Bob Stevenson, Frist’s spokesman.

If Daschle and Democrats would allow for straight up-or-down votes on the nominees, Stevenson said, “then we don’t have to go through some sort of legislative gymnastics to keep [recess appointments] from happening.”

When a recess appointment is made, that individual gets to stay in his or her post for the remainder of that particular Congressional session and the next Congressional session as well. Therefore, Pickering — appointed before the start of the second session of the 108th Congress — must depart his appellate court position in early January 2005. Pryor, however, gets to stay on the federal bench for the rest of this year and all of next year because he was appointed while the second session was already in progress.

Sen. Trent Lott (R-Miss.), Pickering’s most prominent Senate supporter, said he was surprised by Bush’s recess appointment of Pryor and suggested that Daschle’s threats may prove unnecessary because there may not be any more judicial recess appointments in the works.

In Pickering’s case, at the age of 66, he was not considered likely to stay on the bench for more than three or four years, Lott said, making a one-year recess appointment a nice gesture by Bush to get him into the post despite being filibustered.

Lott said he suspects that Pryor, 41, accepted the appointment because, as an elected official in Alabama, he would either face a term limit or have to run for re-election, making a recess appointment more palatable.

But someone like Texas Supreme Court Justice Priscilla Owen, who regularly wins re-election with roughly 80 percent of the vote, could stay in her position for life and would not be as amenable to a recess appointment.

Still, Lott said, if Daschle pushes the recess issue, he wouldn’t be surprised if GOP leaders buckled and gave him what he wanted because of the importance they place on getting back home for personal and political reasons.

“I think we would back down,” he said, “because we’re going to want to leave.”