Here's George Will on March 26, 1998:
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On Dec. 5 Byrd wrote to the president, arguing that 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 that 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."
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Byrd notes that of the 320 positions in Cabinet-level departments that are subject to Senate confirmation, 59 (18 percent) are currently being filled in violation of the Vacancies Act. Thus the Senate's advise-and-consent responsibility, which the Supreme Court has called "among the significant structural safeguards of the constitutional scheme," 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.
Ah, the good old days, when Will was a big fan of advise and consent.
We're waiting Mr. Will.