Lawless. David E. Bernstein
had enough votes to block a formal nomination, and his recess appointment was about to expire.7
The Obama administration went even further with recess appointments later in Obama’s first term. The Republican minority blocked several major appointments through filibusters, and, with the help of the Republican-controlled House, kept the Senate in pro forma session. In retaliation, the Obama administration announced three recess appointments on January 4, 2012, two to the National Labor Relations Board and one to run the new Consumer Financial Protection Bureau. President Obama told the media, “We can’t wait to act to strengthen the economy and restore security for our middle class and those trying to get in it, and that’s why I am proud to appoint these fine individuals to get to work for the American people.”8 Two days later, Seitz’s OLC issued an opinion that the president could reasonably decide that the Senate is not really in session when it was holding pro forma sessions.9 Almost no one found the OLC’s reasoning persuasive.10
The administration’s legal position was also undermined by the Senate’s approval of an extension of a payroll tax cut during a pro forma session less than two weeks prior to the recess appointments, during the time that the OLC and the Obama administration argued that the Senate was in recess. The president signed the bill. It’s absurd to argue, as the administration implicitly did, that the Senate was in recess for the purpose of recess appointments, but was not in recess for the purpose of considering and voting on legislation.11 As law professor Jonathan Turley scolds, “The fact that the administration decided to force a confrontation on such a weak case shows not just a lack of judgment but a cavalier attitude towards the costs of such losses.”12
The Supreme Court ultimately had an opportunity to judge the constitutionality of the recess appointments undertaken when the Senate was in pro forma session. Solicitor General Donald Verrilli gamely tried to argue to the Court that when the Senate refuses to confirm presidential nominees, and that refusal interferes with the working of government, the president’s appointment power must expand to ensure that he can faithfully execute the laws.13
The justices didn’t buy it. Justice Samuel Alito told Verrilli that if presidential appointment power expanded because of an irresponsible or intransigent Senate, this had “nothing whatsoever to do with whether the Senate is in session or not.” Justice Elena Kagan added that the recess appointments power was not meant to deal with mere stubbornness by the Senate. Verrilli then acknowledged that he was arguing that regardless of the original meaning of the recess appointments power, it “may now act as a safety valve” for Senate intransigence. Chief Justice John Roberts retorted, “You spoke of the intransigence of the Senate. Well, they have an absolute right not to confirm nominees that the President submits.” The president’s remedy for nonconfirmation, Roberts suggested, is not to exercise unilateral power, but to nominate someone else the Senate is willing to confirm. A showdown between the president and the Senate, Justice Stephen Breyer chimed in, is a “political problem, not a constitutional problem.”14
Not surprisingly, the Supreme Court held that Obama’s purported recess appointments were unconstitutional and therefore void.15 All nine justices agreed that the Senate, not the White House, gets to decide when the Senate is in recess, and that pro forma sessions in any event count as being in session because the Senate could, if it chose, conduct business during those sessions.
Meanwhile, Holder not only failed to depoliticize the problem-filled Justice Department’s Civil Rights Division but also made things worse. Problems at the division went back at least to January 2001. Outgoing Clinton administration lawyers, worried that the incoming Bush administration would move the division’s policies to the right, engaged in a frenzy of hiring, done in irregular ways, to fill civil service positions with liberals before the Bush administration took over.
These lawyers were hired to help stymie Bush administration priorities, and that’s what they did. Frustrated by the civil servants’ lack of cooperation, Bush administration officials tried to hire more compliant attorneys. They did so by deliberately seeking out attorneys with conservative political views. Implicitly considering ideology in hiring civil service attorneys for the Civil Rights Division was hardly new, albeit illegal; unlike political appointments, career civil service jobs are supposed to go to the most qualified applicants regardless of party affiliation or personal ideology. Bush officials nevertheless considered partisan affiliation and ideology when hiring civil servants. One result was that the Justice Department hired attorneys who had significantly less impressive credentials than was typical for the prestigious Civil Rights Division.16 Democrats had a field day criticizing the Bush Justice Department for violating federal law by hiring lawyers based on their political background.
Meanwhile, many liberal career civil servants behaved badly, seeking to sabotage the lawful enforcement priorities of the Bush administration’s senior appointees. In the Civil Rights Division’s Voting Rights Section, tempers flared over whether the Voting Rights Act should be enforced in a race-neutral manner. The act as written protects the right of all Americans to vote. The Bush administration pursued both traditional enforcement actions investigating the possible suppression of minority voting and also cases involving white voters who allegedly faced discrimination in majority-black districts. Some progressive lawyers in the Voting Rights Section objected on principle to the latter cases, arguing that the purpose of the Voting Rights Act was to protect only minority voting rights. By bringing cases involving alleged discrimination against whites, the administration was diverting resources from the core purpose of the act. Progressive attorneys also resented the Bush administration’s failure to challenge new state voter identification laws, which they argued were meant to discourage minority voter turnout.
Tensions between civil servants and political appointees are fairly common, especially when Republican appointees clash with the overwhelmingly liberal bureaucracy, but the career lawyers’ reactions went way beyond normal bureaucratic infighting. Liberal lawyers harassed colleagues perceived to be conservative, including those hired well before the Bush administration arrived. The DOJ’s Office of the Inspector General (OIG) later reported, for example, that one attorney “was ostracized and ridiculed, and had his work product copied from his computer files and distributed without his knowledge or permission, at least in part because of the perception that he was conservative and because of the legal positions he advocated while working on the submission.”17
Some liberal employees posted on the Internet nonpublic information about goings-on in the Civil Rights Division, accompanied by a “wide array of highly inappropriate remarks ranging from petty and juvenile personal attacks to racist and potentially threatening statements.”18 A supervisor who became aware of such misconduct by one of his employees “not only suggested that the employee disregard counseling and admonishment from Division leadership, but also encouraged the subordinate to continue the improper conduct.”19
When Eric Holder became attorney general, instead of closing down this ideological circus, he became the ringmaster. Holder and his underlings could have signaled an end to the ideological wars in the department, and a desire to depoliticize it, by continuing the prosecution of Bush-era cases brought in good faith by the previous administration that had a valid legal basis. Instead, out of a combination of ideological opposition to race-neutral enforcement of the Voting Rights Act and a desire to shift enforcement resources to the Obama administration’s priorities, the Holder Justice Department made matters worse.
The first sign came when the Civil Rights Division failed to pursue a voter intimidation case arising from the November 2008 election. Video circulated on the Internet that showed two members of the thuggish New Black Panther Party standing outside a polling place in a majority-black precinct in Philadelphia dressed in paramilitary clothing, with one carrying a billy club. In January 2009, just before the Bush administration left office, the Civil Rights Division filed a civil lawsuit under the Voting Rights Act alleging illegal voter intimidation by both men.
In April 2009, the division essentially won the case by default because the defendants failed to appear in court. But the following month, the acting head of the Civil Rights Division reduced the scope of the complaint against the billy-club wielder so that the only consequence was an injunction banning him