So as we expect most of you already know, Bush gave John Bolton an "interim" appointment to the United Nations as soon as the congressional adjournment was called. We can't say that this was a shock to us, but we can say that we are pretty pissed off about it.

Basically, Bush is taking advantage of the Recess Appointments Clause (article II, section 2, clause 3), which states that the President "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Such appointments last through the end of the following one-year session of Congress.

Bush isn't the first person to leverage this clause — Clinton utilized the recess appoinment 140 times over his two terms, while the elder Bush had 77 over his one term, and Reagan had 243 while in office. In some cases, the recess appointments have been reasonable, while in others it seems to have been used as a way to circumvent Senate approval of a nominee. To us, no matter the reason, this seems like a poorly designed clause with ample room for abuse.

When we first started looking into this issue, we were shocked to find the length of the interim appointment. After all, the congressional adjournment doesn't last until January 2007, so why should Bolton's nomination last that long? Shouldn't it be designed to give the Senate just enough time to get back in session? Quite frankly, this clause should allow a short term recess appointment due to emergency situations. Instead, it's being used as a political maneuver in which contentious nominees are crammed into positions as soon as the Senators are out of their seats.

The second thing that pissed us off was that we were pretty sure that this clause was not meant to allow what happened in the Bolton appointment. Namely, the clause says that the President may fill vacancies "that happen during the Recess of the Senate," not all vacancies that happen to exist when the Senate adjourns. This vacancy existed long before the current adjournment, and the nominee was certainly not assured of confirmation. In our view, this clause was not intended to provide cover for the kind of "end run" the President has executed.

Ed Brayton over on Dispatches from the Culture Wars also brought up another problem with this recess appointment. After discussing the timing of the vacancy as we did above, Ed goes on to say:

Second, because "recess" was intended not to refer to any time the court adjourns (which could include weekends and holidays as well) but only to that time between actual sessions of Congress. This was the standard interpretation from the time of the Constitution until 1901. The Constitution uses the term "adjournment" to refer to brief periods of time within sessions, demanding that the term "recess" be limited to the time between sessions.

Ed also links to an essay on this topic by Marty Lederman over on Jack Balkin's page which includes links to a number of related resources. All in all, this nomination certainly doesn't sit well with us. As far as we're concerned, this is not at all what the Recess Appointment Clause was meant to provide for, and the practice should really be stopped.

In the meantime, the United Nations bids welcome to one of the most anti-qualified (unqualified doesn't really cover the scope of Bolton's capabilities) of Bush's nominees. Bolton will be representing the United States on the world stage for the next year and a half. He's got all the rope he needs to hang himself, and we won't be the only ones on suicide watch.

The problem is that, while hanging himself, he can also seriously hang up any progress that's been made in international law, human rights, and other aspects of global security.

Boy do we know it.