Friday, March 27, 1998

Senate abdicates advice-consent duties

By George Will

WASHINGTON - Preoccupation with more glandular scandals is preventing proper scrutiny of a constitutional scandal. The matter of Bill Lann Lee illuminates a recurring dereliction of duty by the Senate and underscores the importance of West Virginia's Robert Byrd, the Senate's senior Democrat, as a defender of that institution's integrity.

On Jan. 20, 1997, Deval Patrick resigned as assistant attorney general for civil rights. His deputy, Isabelle Pinzler, became acting assistant attorney general. On July 21, after Pinzler had served 181 days, President Clinton nominated Lee to Patrick's post, with Pinzler continuing to serve pending Lee's confirmation.

The Judiciary Committee, pursuant to the Senate's constitutional duty to render advice and consent regarding such nominations, held hearings. A committee majority concluded Lee's policy preferences are seriously inappropriate and his interpretations of existing laws are mistaken. The committee did not recommend his confirmation, so his nomination never came to a Senate vote. It was returned to the president Nov. 13, on the eve of adjournment of the first session of the 105th Congress.

On Dec. 5 Byrd wrote to the president, arguing a recess appointment of Lee would be an abuse of the constitutional provision permitting such appointments. (Article II, Section 2, Clause 3: "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.") Byrd argued the recess appointment provision was intended to allow normal government functioning in the early days of the young Republic, when transportation was difficult and recesses often lasted several months.

Byrd said there was no emergency justifying a recess appointment and that the next session of Congress would begin in a few weeks. So a recess appointment "would smack of the desire to circumvent the regular nomination process."

The president chose a different circumvention. On Dec. 15 he announced the naming, by Attorney General Reno, of Lee as acting assistant attorney general.

On Dec. 17 Byrd wrote to Reno noting the order installing Lee made no reference to the Vacancies Act of 1868 and asking if she thought the Act, with its 120-day limitation on the tenure of someone appointed under that Act, applied to the Justice Department. Byrd knew the answer. He has been a senator for almost 40 years and knows Reno's is not the first Justice Department to attack the Senate's advice-and-consent prerogative by claiming the department is "independent of, and not subject to" the Vacancies Act.

Reno's department has reiterated a claim, made off and on for more than 25 years, that where Justice is concerned, the Vacancies Act is not the only statutory means of filling offices. The thin reeds on which Justice leans this claim are provisions, in the 1950 statute that reorganized the department, that "all functions" of officers, agencies and employees of Justice "are vested in the attorney general," who may authorize "the performance by any other officer, employee or agency" of the department or any function of the attorney general.

Byrd demolishes that meretricious argument by noting nothing in the logic or legislative history of the cited language suggests exemption from the Vacancies Act. Indeed, when in 1988 Congress amended the Act, the Senate Governmental Affairs Committee's report reaffirmed the supremacy of the Act as "the exclusive authority" for filling offices subject to Senate confirmation.

The implication of Justice's argument is that sending Lee's nomination to the Senate in the first place was a mere optional courtesy. What if the departments of Interior, Labor, Commerce and Health and Human Services make the same claim of exemption from the Vacancies Act? They could base their claim on language in their reorganization statutes identical to the language on which Justice bases its claim.

Byrd notes of the 320 positions in Cabinet-level departments subject to Senate confirmation, 59 (18 percent) are currently being filled in violation of the Vacancies Act. Thus the Senate's advice-and-consent responsibility is being vitiated by the Clinton administration's distinctive lawlessness. And as Byrd concedes, the Senate's passivity makes it complicit in this assault on the system of checks and balances based on the separation of powers.

The Senate should pass his legislation to affirm and enforce the fact that the Vacancies Act supersedes all other provisions of law. And surely the Senate could find a way and summon the will to evict Lee from the office he illegitimately occupies.

Washington Post Writers Group