We Can’t Rely on the Senate Democrats to Save Roe

Many voters who believe in abortion rights plan to vote for President Bush in November. They have a variety of reasons, but lurking not far beneath the surface is the belief that the President won’t appoint a Justice to the Supreme Court who will vote to overturn Roe v. Wade, or, if he did, the Senate Democrats would not permit it and would filibuster the nomination as they have done for several of Bush’s more radical appointees–Judge Pickering being one example.

Well, Judge Pickering’s recent recess appointment to the federal circuit court should be a wakeup call. Under the Constitution the President is entitled to make recess appointments to any federal office while the Senate is in recess. The appointment lasts for the duration of the Senate’s session and “shall expire at the end of their next session”. These appointments do not require Senate approval since the Senate is in recess. Therefore, Judge Pickering’s appointment effectively ended the filibuster against his nomination and lasts until January 2005. At that point, or before, the President can ask the Senate to confirm Pickering permanently, or can reappoint him when the Senate next goes into recess, which it frequently does. Thus when the Senate goes on its Easter recess in April 2005, the President can reappoint him and make any other recess appointment he wishes.

There is no Constitutional restriction against the President making Supreme Court appointments in this manner. George Washington did it. Oliver Wendell Holmes was a recess appointment, as was Chief Justice Earl Warren and Justice William Brennan. All were later confirmed by the Senate. George Washington’s appointment of Chief Justice John Rutledge was not confirmed however, and Washington had to find himself another Chief Justice. In all 15 Supreme Court Justices have been made by recess appointment, and all but Rutledge were eventually confirmed.

The political message is that a Senate filibuster is nothing more than a delaying tactic when it comes to judicial nominations. The President can get his or her nominee onto the Court eventually. The political price that would be paid is another matter, but a determined President would pay it.

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