The Joy of Recess: An idea for countering Democratic filibustering.

When Miguel Estrada withdrew his nomination to the D.C. Circuit Court of Appeals -- 28 months after it was submitted to the Senate, where seven unsuccessful votes were held to try to break a filibuster -- a triumphant Sen. Edward Kennedy proclaimed that he and his Democratic colleagues were more determined than ever to block other Bush candidates for the federal bench. Texas supreme-court judge Priscilla Owen and Alabama attorney general William Pryor are already being filibustered, and filibusters have been threatened against other nominees. The aim of Senate Democrats is to keep as many conservatives off the bench as possible. President Bush will lose this unprecedented battle of wills -- unless he is willing to frustrate the Democrats' objective by making recess appointments of the most conservative candidates he can find. The fundamental qualification for these "apoplexy appointees" -- who would serve on the bench only temporarily -- should be their maddening effect on Ralph Neas.

Frustrated conservatives look in vain to Senate Republicans to either a) prevail over filibusters by demanding round-the-clock sessions or b) prevent the filibusters against judicial nominees by changing Senate rules. To stage a successful all-night anti-filibuster effort would require that every single Republican senator be available all night -- the narrowest imaginable margin of error. And a rules change is discouraged by some veteran conservative aides, who are concerned that permitting such changes at the hands of a simple majority would inevitably favor an emboldened Democratic majority in the future. And, in any case, the responsibility to restore the balance of power between the president and the Senate with respect to judicial nominees rests with the president.

The past months have made it clear that Senate Democrats are immune to embarrassment over the trumped-up charges they are using to defeat some supremely qualified nominees who enjoy the support of a Senate majority. While President Bush complained about the Senate's blocking of his nominees on the campaign trail last fall, there is no evidence that Democrats are concerned about political retribution. As long as the filibuster tactic succeeds in keeping conservatives off the bench, an increasing number of nominees will face the 60-vote hurdle. Nan Aron, president of the liberal Alliance for Justice, recently declared, "I think we are gaining momentum, Estrada has to be a lesson to the White House and to Bill Frist that their strategy of secrecy and lack of consultation is not succeeding."

President Bush should resolve to frustrate the Democrats' fundamental objective, and teach a lesson of his own. Rather than prompting a surrender of the president's constitutional prerogative to nominate judges of his choosing, Miguel Estrada's withdrawal should trigger the exercise of a president's well-settled authority to make recess appointments. In a recent article in Legal Times, Randolph J. May pointed out that there have been over 300 recess appointments to the federal bench, the first three by President George Washington. Such appointments can be made when the Senate is in recess, and nominees serve until the end of the congressional session in which they are appointed. Individuals appointed this year would serve until January 2005.

May recommends that President Bush appoint stalled nominees to the seats they are slated for and take the opportunity to make his case about the Democrats' indefensible obstruction. The outraged reaction of Senate Democrats and their liberal-activist masters would include the charge that temporary nominees contemplating eventual confirmation would lack the independence of life-tenured judges. May also admits that it's doubtful that candidates who hope ultimately to be confirmed would accept a controversial recess appointment.

The president could handily overcome these objections by choosing recess appointees from a wholly different pool of potential candidates. There is a plentiful supply of experienced, public-spirited conservative lawyers, including former judges, who would no doubt answer the call to pitch in temporarily to help shorthanded courts of appeals. The temporary appointments, of persons with no intention of being considered for life tenure, would make these nominees independent in their judgments, as they would have no need to curry favor with anyone. Acceptable nominees would need only one characteristic in addition to professional qualifications and a willingness to serve temporarily: They would have to meet the "apoplexy appointment" test, i.e., cause Sen. Charles Schumer to wake up screaming in the night at the prospect of their serving on a federal appeals court.

By defending presidential prerogatives, President Bush would also address the vacancy crisis on some of the federal appeals courts. The Judicial Conference of the United States has declared that 15 of the appeals-courts seats with pending nominations represent "judicial emergencies." The Sixth Circuit Court of Appeals, for example, has four vacancies on its 16-member bench, owing to the stubborn resolve of Michigan's two Democratic senators to block any Bush nominee as payback for the Senate's refusal to approve Clinton nominees to that court. Last year, it took an average of 16 months to resolve a case in the Sixth Circuit, compared with an average of 10.7 months in the other circuits. Sens. Carl Levin and Debbie Stabenow are insisting that Bush scrap his four nominees in favor of candidates approved by a bipartisan panel. The bickering over nominees to the Sixth Circuit has been going on for six years.

When the Senate next recesses, Bush should announce that he has appointed four individuals who will help the Sixth Circuit Court of Appeals with its caseload. One ideal candidate would be Lucille Taylor, a talented conservative lawyer who was former governor John Engler's legal counsel. She is a veteran of Engler's battles over his nominees to the Michigan bench; her appointment would thrill conservatives and enrage liberals. Lucille Taylor meets the test.

There are currently 19 vacancies on the circuit courts of appeals. If President Bush appointed a half-dozen staunch conservatives to serve temporarily, with the stated intent to keep making such recess appointments until his nominees for lifetime tenure no longer faced Senate filibusters, Democrats could be expected to abandon a tactic that has backfired. It's up to the president to restore the appropriate balance of power on judicial appointments -- or explain to his frustrated supporters why he's unwilling to do so.