On "Probationary" Appointments (including "Recess Appointments" to the Federal Judiciary)

Sandy Levinson

Much has already been blogged about the stunning story in today's NYTimes about recent OLC memos upholding highly questionable interrogation practices. I want to direct attention to the following passages in the story, concerning the author of the memos, Steven J. Bradbury, who has headed the OLC since 2005 as the acting head and has been nominated, subject to Senate confirmation, to take over the post more officially. Mr. Bradbury was named to succeed Daniel Levin, the acting head who had signed the Dec. 30, 2004 memorandum officially rejecting the Feb. 1, 2002 memo authored by John Yoo (and signed by Jay Bybee) authorizing what most reasonable observers would describe as "torture." (That memorandum, of course, had earlier been disaffirmed by Bybee's successor, Jack Goldsmith.) Mr. Levin was passed over for nomination presumably because he had cast his lot with the insufficiently "Bushie" lot of conservatives including Goldsmith and James Comey. So now we come to Mr. Bradbury:

Mr. Bradbury[, who had been Goldsmith's deputy,] soon emerged as the presumed favorite. But White House officials, still smarting from Mr. Goldsmith’s rebuffs, chose to delay his nomination. Harriet E. Meirs, the new White House counsel, “decided to watch Bradbury for a month or two. He was sort of on trial,” one Justice Department official recalled.. . .

Justice Department colleagues say Mr. Gonzales was soon meeting frequently with Mr. Bradbury on national security issues, a White House priority. Admirers describe Mr. Bradbury as low-key but highly skilled, a conciliator who brought from 10 years of corporate practice a more pragmatic approach to the job than Mr. Yoo and Mr. Goldsmith, both from the academic world.

“As a practicing lawyer, you know how to address real problems,” said Noel J. Francisco, who worked at the Justice Department from 2003 to 2005. “At O.L.C., you’re not writing law review articles and you’re not theorizing. You’re giving a client practical advice on a real problem.” [This certainly puts everyone in the legal academy in his/her place! Editorial comment added by Levinson.]

As he had at the White House, Mr. Gonzales usually said little in meetings with other officials, often deferring to the hard-driving Mr. Addington. Mr. Bradbury also often appeared in accord with the vice president’s lawyer.. . .

While waiting to learn whether he would be nominated to head the Office of Legal Counsel, Mr. Bradbury was in an awkward position, knowing that a decision contrary to White House wishes could kill his chances.

Charles J. Cooper, who headed the Office of Legal Counsel under President Reagan, said he was “very troubled” at the notion of a probationary period.

“If the purpose of the delay was a tryout, I think they should have avoided it,” Mr. Cooper said. “You’re implying that the acting official is molding his or her legal analysis to win the job.”

Surely Mr. Cooper is correct. If one believes that the OLC is in fact to have some quasi-independent role in offering an honest and disinterested view regarding highly controversial issues, then one might want to make sure that there is at least a modicum of job security attached to the position. (Presumably presidents can ask for the resignation of anyone at any time, within the DOJ, but, as we see with the US Attorney scandal, people who have been officially appointed and confirmed by the Senate are more visible and presumably protected by a widespread view that firing should be "for cause" rather than to serve some fairly crass goal of the President (including making sure he gets just the advice he wants as to presidential prerogative)). What we are seeing, incidentally, is a more and more open fight between "rule of law" conservatives, including Jack Goldsmith and Doug Kmeic, and "anything the President wants to do, so long as it's accompanied by the magic words 'national security,' is automatically authorized by the Constitution," typified, of course, by David Addington, John Yoo, and, it appears, Mr. Bradbury.

In any event, if one shares the view that there's something problematic about Mr. Bradbury's "probationary" status, then certainly that's got to be the case as well with "recess appointments," by which persons are placed on the federal judiciary with decidedly non-life (or even a sufficiently long non-life] tenure to have confidence that they might not be tempted, consciously or subconsciously, to tailor their opinions to the taste of the confirming senators.
That the Constitution is read by most people to allow recess appointments to the judiciary is no more an argument for their desirability and defensibility than is the fact that the Constitution sets up the Electoral College or any of its other deficiencies of greater or lesser importance. The Recess Appointment Clause is scarcely so important as, say, the veto clause, but we should recognize that there are real costs attached to any and all appointments, dealing with important matters where independent judgment is highly desirable, that are "probationary." If Mr. Bradbury is consigned to the appointments graveyard that he may richly deserve, I wonder if the President will simply offer him a recess appointment should Congress be so unwise as to take any recesses. I assume that such issues will be germane when the Senate Judiciary Committee considers the nomination of the new Attorney General. (Will he be given authority to name the new head of OLC, for example, or will that choice be made by Bush/Cheney/Addington?)
Posted 4:27 PM by Sandy Levinson [link]