Torture and recess appointments: A further note on our defective Constitution

Sandy Levinson

The Senate, to its discredit, seems poised to confirm someone as Attorney General of the United States who is unwilling to give an honest answer to what is in fact the status of waterboarding with regard to torture. Even if one accepts, arguendo, the proposition that there may be a tenable argument that under some circumstances it would, nevertheless, be permissible, that doesn't in the least affect the validity of describing it as torture. Instead, one would be forced to argue that there are circumstances where the use of torture would not "shock the conscience" of someone we would regard as a "reasonable person." This is, incidentally, why I wish that the senators had been more skilled in distinguishing what I would call the "descriptive questions"--i.e., what do we call it?--from the legal ones--i.e., is it always the case the torture is illegal or unconstitutional? That would at least force us, as I have earlier argued, to confront the possibility that our vaunted Constitution allows torture, as against taking refuge in the absolutely dishonest and disgusting attempt to avoid recognizing the tortuous reality of waterboarding.)

But I'm basically repeating myself from an earlier post. So the new question is, What explains Sen. Schumer's disgraceful capitulation, beyond the all too likely possibility that he simply shallow and doesn't really care about torture (unlike his concern for protecting the tax privileges of hedge fund managers)? If one tries to be at least somewhat fair to Sen. Schumer, though, one might look at one justification that he offered, his fears that George W. Bush would simply name someone far worse--and one can easily think of people who are worse that Mukasey--to a recess appointment. This would, of course, completely eliminate any role of the Senate in deciding who serves as the country's highest legal officer within the Executive Branch. This is a realistic fear, but, of course, it's a fear that arises only because we have a Constitution that includes the recess appointment power. No doubt it made a great deal of sense in 1787, when the Senate was rarely in session. It makes almost no sense today; it serves exclusively to weaken the role of the Senate and to add to the unaccountable power of the president.

Needless to say, presidents of both parties have used it, Clinton most notably with regard to appointing Roger Gregory to the Fourth Circuit and Bill Lann Lee to head the Civil Rights Division of the Justice Department. I have earlier posted on why I believe that recess appointments to the federal judiciary are (or, at least, have become) a terrible idea, if we truly believe in an "independent" judiciary. (Incidentally, past recess appointments include both Oliver Wendell Holmes and William J. Brennan.) Indeed, I note that one source indicates that Clinton made 140 recess appointments during his two terms, which is 100 fewer than Ronald Reagan made in his two terms. One can understand Clinton's frustration at the Republican Senate, just as, of course, one can understand Reagan's or Bush's frustration at a Democratic Senate. But none of this adds up to a justification for allowing the President simply to do an end-run around the basic notion of Senate assent to those who would lead our country. The recess appointment power today functions as one of the monarchical prerogatives of the presidency, of which we already have too many.

Frankly, I'd be happy to support an amendment disallowing recess appointments except under extraordinary conditions (such as the short time after a direct attack on the US during which the Senate is in recess) that would take effect only with the next President (who will likely be a Democrat). I see no particular reason to see recess appointments as an issue that would divide us along standard-form political grounds, whether liberal/conservative or Democratic/Republican. The relevant distinction would presumably be congressionalists v. presidentialists, and I wonder how many of the Balkinization regulars are truly happy with the status quo.
Posted 4:20 PM by Sandy Levinson [link]