Congress, Constitutional Law, Lawyering, Politics, Society, Supreme Court

Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?

Yesterday, I addressed arguments that the appointment of Matt Whitaker as Acting Attorney General violates federal law.  The arguments based on the Federal Vacancies Reform Act, in my view, are unpersuasive. As I noted, however, there remains a different and more fundamental question of whether the Act itself is unconstitutional by allowing an official without Senate confirmation to assume, even temporarily, the office of a “principal officer.”  If standing can be found to challenge the Act on that basis, the constitutional  arguments are compelling.  The constitutional question could be difficult to litigate if a nomination is made in January.  However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor. Nevertheless, this is an issue that is somewhat untested in the courts and challengers would need to establish standing as well as raise a “ripe” issue to argue that Whitaker is lawful under the Act but the Act is unconstitutional under Article II.

It is not the entire Act that would be challenged. The first two options both involve confirmed officials being designed as acting heads of the department.  However, Subsection (a)(3), states “notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if (A)during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule”

There has been a long debate about the impact of the Appointments Clause of the Constitution on such appointments.  Under Article II, Section 2, Clause 2, a president must secure the “Advice and Consent” of the Senate for non-inferior or “principal officers.”  The clause specifically mandates such confirmation for “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”  The clause then allows for a more lenient rule for inferior officers:  “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

The position of the Attorney General is clearly that of a principal officer — requiring confirmation as a prerequisite for the exercise the powers of that office.  Under the Act, Whitaker can carry out those functions without confirmation for 210 days and then gain another 210 days if the nominee fails to secure confirmation.  In the meantime, a federal agency is being run by someone without confirmation (Whitaker’s earlier confirmation for U.S. Attorney would not count).

Ironically, it was the Democrats who resisted this argument recently in the challenge to both Mueller’s authority but also Obama appointments.  I have been skeptical of this argument against Mueller by Steven Calabresi in the Wall Street Journal under the Appointments Clause because he is reporting to and under the supervision of a principal officer. Nevertheless, this remains a rather murky area of delineation under Article II.

In this case, Whitaker will be performing at the highest official in the Justice Department, including potentially playing a key role on matters of succession and other vital functions.

The selection of Whitaker unnecessarily triggered this constitutional question, which in turn fueled speculation of why the President would take on such water for a relatively unknown individual.  Whitaker is also controversial in his statements suggesting that we should appoint judges with Christian values and his questioning of the qualifications of secularists.  Trump could have simply followed tradition and appointed Rod Rosenstein or turned to his Solicitor General.  He didn’t.

In a fight, Trump could well lose conservatives on this one like Justice Clarence Thomas who as written  about the importance of such confirmations under the Constitution.  The question is the likelihood of a fight if Trump moves on a nominee in the next few weeks.  As with Emoluments and birthright citizenship and other issues, Trump appears intent in answering long unresolved constitutional debates. This was was entirely unnecessary and his critics have solid ground to question the statute under the plain meaning of Article II.  Thus, Whitaker is lawful under the federal law but there remains a serious question of whether the federal law is constitutional.

139 thoughts on “Is The Whitaker Appointment (and the Federal Vacancies Reform Act) Constitutional?”

  1. TRUMP FALSELY CLAIMS HE NEVER KNEW WHITAKER

    With the appearance problems, background problems and timing problems, Whitaker’s appointment runs the gamut. Which made it interesting Friday morning when Trump seemed to distance himself from Whitaker.

    “I don’t know Matt Whitaker,” Trump said, when asked whether he had talked to Whitaker about Mueller’s investigation. “Matt Whitaker worked for Jeff Sessions, and he was always extremely highly thought of, and still is.”

    It’s not true that Trump doesn’t know Whitaker. He has reportedly been present for several Oval Office meetings with Trump, alongside Sessions. But more important, why is Trump distancing himself? The most probable explanation is that he doesn’t want it to look as if he put his guy in a position to influence the investigation into his own campaign. But it also seems possible Trump sees the growing questions about Whitaker’s background and wants to make sure they don’t come back to bite him. At the least, it would seem to bode poorly for Whitaker’s chances at getting the job full time.

    Edited from: “Almost Everything About Matthew Whitaker’s Appointment Is Problematic

    Today’s WASHINGTON POST

    1. PH

      So Trump is a lying sack of sh*t; what else is new? Or, it cold be memory loss from oncoming dementia; or both. One thing is absolutely guaranteed for sure unarguable indisputable without question….Trump is a lying sack of sh*t. He said so himself. “I just make stuff up.” “When you’re famous like me, you can grab their pu**ys…” “I could shoot someone on fifth avenue and get away with it.”

      Yes folks, this is the disgrace that is the President of the United States of America.

      1. Trump would have us believe he’s appointing an A.G. he never met. Like, “I never met the guy but I hear he’s really good. So I’m going give him an unofficial appointment with no Senate approval”.

    2. I’ve accompanied my boss to numerous meetings with upper management. I guarantee you, none of those executives know/remember my name and wouldn’t even recognize me if they walked past me.

    1. Meh. I never click on links to fake news sites like politico, and my Brazilian wife thinks White Anglos are full of caca. So youll have to excuse us a minority gay married couple that we dont believe you 🏳️‍🌈😜💃🏽

      Olivia and Maria

      1. Conway and Katyal cite the Appointment Clause of the Constitution, which provides that a “principal officer” in the federal government may not be appointed without Senate confirmation, a position held by other skeptics who say Whitaker’s appointment is invalid.

        The same argument was once invoked by allies of the president in an attempt to void Robert Mueller’s appointment as special counsel overseeing the investigation into Russian interference in the 2016 election, but because he was reporting to a Senate-confirmed appointee, Deputy Attorney General Rod Rosenstein, he doesn’t fit the “principal officer” criteria of answering to the president and to the president only.

        1. Again, there is nothing novel about interim appointments. It didn’t appear out of nothing in 1998.

      2. What’s fake about Politico?

        Just calling something fake without evidence isn’t convincing.

  3. The Federal Vacancies Reform Act of 1998 is unconstitutional.

    The Constitution grants the power to appoint to the President.

    The Constitution does not grant power to appoint to the legislative branch.

    The Constitution does not grant power to modify Article II, Section 2, Clause 2 to the legislative branch.

    Modification of the Constitution is effected through the amendment process.

    Appointments and interim appointments are the sole purview of the President of the United States.

  4. FORMER U.S. ATTORNEY WHITAKER LENT PRESTIGE TO SCAM

    Whitaker’s sudden elevation this week to replace fired Attorney General Jeff Sessions has put new scrutiny on his involvement with the shuttered company, whose advisory board he joined in 2014, shortly after making a failed run for U.S. Senate in Iowa.

    At the time, he was also running a conservative watchdog group with ties to other powerful nonprofits on the right and was beginning to develop a career as a Trump-friendly cable television commentator.

    World Patent Marketing — founded by Miami businessman Scott J. Cooper, who had donated $2,600 to Whitaker’s Senate campaign — prominently highlighted Whitaker’s résumé as a former U.S. attorney, which helped lend the company credibility.

    But Whitaker seems to have been more than a figurehead. He spoke about inventions of the company’s clients in online videos — including a special hot-tub seat for people with mobility issues. He also penned a response to at least one complaint — writing a threatening email in which he cited his role as a former U.S. attorney, according to court filings.

    “It’s really upsetting to know that guy will be attorney general,” said Ryan Masti, 26, who lost $77,000 after paying World Patent Marketing to help him bring to market his idea for a social media app to help the disabled. “It’s so offensive. It’s like a stab in the back.”

    Whitaker did not respond to requests for comment about World Patent Marketing or the investigation. “We’ll decline,” Justice Department spokeswoman Sarah Isgur Flores said in an email to The Washington Post.

    A partner at Whitaker’s former Iowa law firm declined to comment. A spokesman for the FTC also declined to comment.

    Edited from: “Before He Led Justice Department, Matthew Whitaker Promoted Company Accused Of Deceiving Clients”

    Today’s WASHINGTON POST

    1. WHILE LENDING PRESTIGE TO SCAM..

      WHITAKER RAN NON-PROFIT THAT FILED ETHICS LAWSUITS!

      MERRICK GARLAND AMONG WHITAKER’S TARGETS

      As he was advising World Patent Marketing, Whitaker ran a conservative watchdog group called the Foundation for Accountability and Civic Trust. The group lodged numerous ethics complaints and calls for investigations, targeting Hillary Clinton and Supreme Court nominee Merrick Garland, as well as some Republicans.

      On its website, FACT lists a downtown Washington address. But it is one of some 200 “virtual members” who use a K Street location to claim a presence in the nation’s capital, according to Brian Bullock, assistant general manager of Carr Workplaces, the firm that operates the site.

      “They only come in every six months or so,” Bullock said. “We pretty much just accept their mail.”

      FACT was formed in 2014 with a large donation from another tax-exempt charity that has served as a fountainhead of cash for organizations affiliated with the conservative movement — an arrangement that helps further mask the identity of donors.

      The group received more than $1 million in recent years from a donor-advised fund called Donors Trust Inc., which is a source of funding for scores of other conservative groups, including Judicial Watch, Project Veritas, the Claremont Institute, the Federalist Society and the David Horowitz Freedom Center, tax filings show.

      Whitaker received $402,000 in 2016 as FACT’s president and director — nearly a third of the donations the group received that year, according to its tax filings. He received $252,000 in 2015, more than half the charity’s receipts that year, tax filings show.

      Edited from: “Before He Led Justice Department, Matthew Whitaker Promoted Company Accused of Deceiving Clients”

      Today’s WASHINGTON POST

  5. Well thankfully Trump has stacked the Federal Courts with conservative judges and Justices 🧘🏽‍♂️🏋🏽‍♀️🏆 while Dems have done nothing for the past two years

    Since RBG has one foot in the grave, and Kavanaugh is already seated, nothing before the Fed Courts and SCOTUS will be a problem anymore

    note to RBG….Scalia is waiting for you in Purgatory. Hurry up and kick the celestial bucket

  6. I think everything hinges on how fast Trump tries to fill the position. The faster he appoints someone and the faster the Senate acts, the less time anyone has to complain.

    1. PC Schulte,..
      They will “find the time” to complain, no matter how fast a new AG is appointed.
      Maybe this has already been covered, but can Trump keep Whitaker as “acting AG” indefinately?

  7. Jon questions: “why Whitaker”? Oh, come on now Jon, you know why. Didn’t you watch the news last night? Didn’t you see people taking to the streets in support of Mueller in literally every major city? Whitaker has served primarily as a spy for the White House in the DOJ and point pundit criticizing the Mueller investigation, both in writing and in print. Fatso put him in there thinking he can either fire or handcuff Mueller by cutting his budget, disallowing indictments to go forward, or otherwise stymie bringing Fatso and his family to justice. I think his orange hair and skin might coordinate well with an orange jump suit.

    Jon also implies that some of the outrageous and illegal things Fatso does is based on some strategy. Jon thinks he is “intent on answering long unresolved Constitutional questions.” Such bull. Fatso’s only strategy is to get attention and adulation for himself. He has no strategy other than figuring out how to pander to his base by name-calling, throwing out racist rhetoric and creating fear of foreigners and loss of white privilege among the dupes who are his disciples.

    BTW: you Trumpsters: why aren’t we hearing every day about the imminent “invasion” of the shoeless brown people?

    On a more serious note, there are legal scholars who believe that any prosecutions brought under Whitaker could be later set aside because he’s not legit.

    1. There may be an even more sinister reason for Trump choosing Whitaker to replace Sessions.

      Any defendant indicted by any U.S. Attorney for anything, in any U.S. District Court, while Whitaker serves as Acting Attorney General can file a motion to have the charges dismissed on the grounds that, since Whitaker was not confirmed by The Senate, any actions taken under Whitaker’s tenure at The Justice Department are invalid. That, of course, would be complete and total CHAOS. However, this is Trump we’re talking about. CHAOS is Trump’s REASON FOR BEING.

      P. S. You’d think that Turley would complain most snippily about the inherent conflict of interest entailed by a POTUS appointing an invalid A.G. so that his family members, business associates and political cronies could not be validly indicted for anything at all while that invalid A.G. serves in that office. But then, FUBAR is as FUBAR does.

  8. WHY WAS SESSIONS RELIEVED THE MORNING AFTER MIDTERMS?

    There was no emergency requiring the immediate removal of Attorney General Sessions. Sessions could have easily submitted a resignation effective in January. In the meantime Trump could have nominated a new A.G. for Senate approval. Such an orderly plan would have been what’s known as ‘regular order’.

    But Trump knew that Democrats were going to take the House. That was predicted by almost every pollster. So Trump being Trump wanted to spring some little surprise to cast suspense on a day when Democrats would rejoice. An ominous surprise to conjure visions of storm clouds ahead. Whitaker ‘is’ a storm cloud!

    Now we have this ‘Acting A.G. to raise questions about Trump’s intentions. An ‘Acting A.G. whose profile is essentially that of a hatchet man. Whitaker has made numerous statements hostile to the Mueller Probe. He also made statements pleasing to Evangelicals but disturbing to liberals; exactly the man to deepen polarization.

    I have read that Trump has no intention of making Whitaker the permanent A.G. The whole concept of Whitaker’s appointment is negative. An attack dog that Trump is going to unleash. Which makes this appointment totally cynical from the start.

    1. When you get on the wrong side of Trump, he wants you gone. Everyone told him he had to wait until the midterm elections were over. I think he fired Sessions because the voting for the election was completed and he wanted his revenge. Unfortunately I think he lost the best asset he had with Sessions. Loyalty is hard to find today and despite all the crap Trump gave him, he continued to work on the Trump agenda.

      1. What you call “work on the Trump agenda” apparently includes:
        1. Refusing to appoint an Independent Prosecutor to charge and convict the obvious DOJ/FBI members and Obama administration members who conspired and acted against their political enemy Trump (hopefully getting one or more to flip for Obama himself…unfortunately anyone w/actual physical evidence against HRC and/or Obama would be Arkancided).
        2. And not bringing any of the many current DNC-owned Deep State DOJ/FBI members under control, who still work daily to thwart Trump’s agenda.

        As far as punishing felons/members of the FBI/DOJ who conspired against Trump, Sessions acted more like a member of that group than someone working to support Trump. The day Sessions decided to recuse was the day he should have resigned.

        Yes, I’ll give Sessions credit for his border enforcement.

        If Eric Holder was a Trump loyalist, as AG he would have turned the DOJ/FBI upside down looking for Trump’s enemies. Some would be in prison already regretting their felonies (of course Holder himself is an actual felon, but that’s another story). Sessions apparently did nothing in that regard. I think Sessions just basically gave these felons and misfits a pass because he views them as being on the same team.

        1. Princess, show us an article from mainstream media documenting Eric Holder’s felony conviction.

          And if you can’t do that, take your racist lies elsewhere, you drunken hag.

        2. Excellent. Yet another one of the gullible rubes, dupes, klan wannabees, pocket-traitors or grifters on the make pipes up with some more alex jones-quality wackjob schtick. Pro tip: your meds are in the nightstand drawer.

          this is to “on Fridays when I get lit up, I usually just make sh*t up for the hell of it” princie

      1. TRUMP BELATEDLY AND RELUCTANTLY FIRES AG SESSION IN A SHOW OF BIPARTISANSHIP.
        President Trump, on the heels of the 2018 midterm elections, showed his willingness to work with Democrats😇 by granting the wish expressed by Rep. Maxine “Mad Max” Waters and others who have long demanded that Session ne fired.😄😂
        His gesture of bipartisanship was greeted with widespread criticism from the very people who had called for Session to be ousted.
        Since it seems that there is just no pleasing some people😕, Trump is reconsidering his move toward bipartisanship.

        1. Tom, the question would be the one I raised: “Why didn’t Trump simply nominate a ‘real’ Attorney General for Senate approval???

          What’s wrong with following regular order????

          1. He’s done nothing out of order. He canned an at will appointee. Another man acts as an interim until Congress approves a new Attorney-General. Your witless pretenses are a nuisance.

          2. PH,…
            If Trump is not required to nominate a “real” Attorney General within a specific time frame, he probably sees no advantage in doing so.
            ( See my earlier question to PC Schulte about how long an “acting” cabinet head can stay in that position).
            It’s likely that, if and when he nominates someone as the new AG, they’ll be another confirmation circus in the Senate.
            Trump may also be trying to wait until the fallout from the last circus settles down before bringing the circus back to town.
            I don’t know if he could try a “recess appointment” of a new AG….I’m not familiar enough with laws, regulations, Senate rules, etc. that govern this area to know if that’s a possibilty.
            If it is possible, Trump may use that option ( a recess appointment).
            With the sole motive of sparing the Senate and the country the ordeal of another contentious, divisive ordeal.😉😏

            1. Tom:

              Oh, I get it..!! ‘The Kavanaugh hearings were just such a trauma we can’t go through that national nightmare again. You see, Democrats abused that process and spoiled it for everyone’.

              What a lame answer!

              1. in fact he has time with a republican controlled senate to ram a new AG through hearings, and he certainly should.

                probably the interim guy is a throwaway to do some dirty work and then quit. sorry Dems you raise the stakes to impeachment then the gloves might as well come off

            2. LAME?!? I just try to present the news in the same objective, evenhanded😕😂manner of the Hill Headline News Network (HHNN).

            3. Well, I tried twice to post comments in response to your “lame” claim.
              Maybe they’ll post eventually, maybe not. The theme was:
              HILL THREATENED😧BY COMPETING, ALL-CAP NEWS SERVICE IN THE TURLEY COMMENTS SECTION.

              1. Thank God you clued me in to what ‘HHNN’ stands for. I thought it had been an oversight in my education.

            4. It’s only a circus if the Republican majority on the Senate Judiciary Committee allow it. Rapid quick-and-dirty process, then floor vote.

              Trump’s personnel system in re the Department of Justice hasn’t performed well. Both Rosenstein and Wray need to be run out of town.

    3. who cares? were you in favor of Sessions pot related asset forfeiture program that makes no sense in light of ongoing state level marijuana legalization?
      were you in favor of him trying to deport tens of thousands of migrants who had only minor paperwork problems and were not illegals?
      sessions is gone, good

      you’d think he was a liberal’s best friend. shows how much they really care about their own supposed agenda. But it’s just a game to Democrats. on one level I can admire that about them, but on another level it’s sick

      1. Kurtz, why don’t you answer my question: “Why didn’t Trump nominate a ‘real’ Attorney General for Senate approval?”

        The obvious answer is: “Trump doesn’t want a ‘real’ Attorney General. And Whitaker, with his baggage, might be too problematic for Senate approval.

        What Trump really wants is pit bull. A stooge, like Devin Nunes, who’s willing to do Trump’s dirty work. A goon to gum-up the Mueller Probe.

        Therefore these disingenuous observations that liberals never liked Jeff Sessions is exactly that: ‘totally disingenuous’! Trump is replacing a ‘severe conservative’ with a shadowy hatchet man. From a liberal standpoint, that’s only going from bad to worse.

        1. Of course, Peter Shill manifested no objection to Eric Holder or Loretta Lynch.

          What piece rate is Correct the Record paying you?

        2. Not a stooge. I would call him a throwaway like a gun you use once then throw away.

          He will do some dirty work, if you want to call him that, though I prefer to view it as long overdue correction of the Meuller witch hunt. But then that will make him unsuitable for follow up. he will do it fast is my prediction. and then a new AG will get rammed through Senate in January.

          It will be a tough fight to the last day, but in Trump we have what we need at this last moment of opportunity, a very resilient, resourceful, and determined pugilist. I will support him 100% as I have from day one in spite of his many faults and dubious choices, I recognize that I can’t do a better job myself, no way, and certainly none of the other scurrilous weaklings that populates the Republican party leadership are up to it either. But, he’s teaching them to have some brass. Maybe they will grow some backbone. What a guy!

  9. There is nothing Constitutional about the actions of this govt. Here is an example: Through a close analysis of redacted official documents, Middle East Eye has established that an MI6 officer was aware that CIA officers had placed Ibn al-Sheikh al-Libi inside a sealed coffin at a US-run prison in Afghanistan. The officer had then watched as the coffin was loaded onto a truck and driven to an aircraft that was waiting to fly to Egypt.

    In an incident report sent to MI6 headquarters in London, the officer and his colleagues reported that “we were tempted to speak out” at the treatment of Libi, but did not. “The event reinforced the uneasy feeling of operating in a legal wilderness,” they said.

    Despite being aware that Libi had been flown to Egypt inside a coffin, and despite that country’s well-documented record of human rights abuses, both MI6 and MI5 decided to pass questions to be put to him, and continued to receive reports about what he was saying.

    Under torture, Libi told his Egyptian interrogators that there were links between al-Qaeda and Iraqi President Saddam Hussein’s nuclear weapons programme. Three members of the militant organisation had been sent to Iraq for training, he said.

    On his eventual transfer back into CIA custody, Libi said that he had fabricated the account in order to avoid further torture.

    By that time, however, his statements had been used to justify the invasion of Iraq.” (story at Middle East Eye)

    Unless we the people rise up peacefully and demand that the Constitution hold force in this govt. there is no rule of law. The powerful will not just hand over their unjust taking of our rights. It will take as many people as possible, refusing to go along w/what is happening to our nation to restore the rule of law.

  10. Want to see an AG magic trick? Former NJ Gov. Chris Christie

    Christie was spotted at the White House on Thursday for a meeting with Jared Kushner about prison reform. He is reportedly working to mend his relationship with Kushner, one that has been acrimonious since Christie landed Kushner’s father in jail.

  11. ” The courts are supposed to be the inferior branch of our three branches of government ” ….Matthew Whitaker.

  12. However, these constitutional concerns again raise the logic of firing Jeff Sessions immediately after the election as opposed to having him serve until the confirmation of his successor.

    If Sessions submits a letter of resignation, is he technically fired?

    1. Technically, no. However, the resignation was offered at the request of The President. The first time Sessions offered his resignation back in May of 2017 it was not at Trump’s request. And McGahn had to talk Trump out of accepting Sessions’ first offer. Plus several of Mueller’s written interrogatories for Trump address the issue of Trump’s efforts to get Sessions to un-recuse himself.

        1. Chief Olly, I have reason to believe that Turley may be completely and totally freaking out over the appointment of Whitaker. Turley probably suspects that Whitaker’s appointment could threaten the dismissal of each and every last indictment brought by any U.S. Attorney, in any U.S. District Court, against any defendant, while Whitaker serves as Acting Attorney General. And that puts the CHAOS in FUBAR. I don’t think Turley can handle it. So Turley is hoping and praying that Whitaker’s appointment is legal but that the law, itself, is unconstitutional. As if that sort of legal distinction could counteract the CHAOTIC FUBAR of The POTUS, Trump. Poor Turley.

          1. L4Yoga/Annie/Inga enables David Benson, and the NPCs R. Lien and Marky Mark Mark – it a good thing you are an attorney and will be filing these motions. The courts will appreciate the work.

            1. The risk of dismissal would probably be limited to cases in which Whitaker actually made a decision to approve of some prosecutorial action; such as grants of immunity, plea deals, subpoenas and indictments. In cases where Whitaker takes no administrative action over the prosecutorial discretion of any U.S. Attorney, the defendants would have no legitimate motion to dismiss. OTOH, if U.S. Attorneys get to practice prosecutorial discretion independently of Whitaker, then Mueller and crew will have plenty of precedent to practice prosecutorial discretion independently of Whitaker as well.

  13. Nevertheless, this remains a rather murky area of delineation under Article II.

    Which is why the line is properly defined by statute and not court decrees.

    Again:

    1. We have far too many subcabinet officers intervening between the bureau chiefs and the department secrataries.

    2. We have far to many appointments subject to confirmation, far too many opportunities for members of the Senate to play games (blue slips, holds).

    3. Also, too many appointments are allocated to the Senate Judiciary and Foreign Relations committees to vet. Vetting ambassadorships and federal judgeships should, as a rule, be allocated to ad hoc committees of the Senate chosen by lot, four from the majority, three from the minority.

    4. As for filling temporary vacancies, the president should have plenary discretion to choose among officials who ordinary report to the department head or report to his reports for non-renewable terms of up to 18 weeks.

  14. I don’t think its constitutional either as it fetters the President’s authority to appoint. The Constitution requires the Senate advise and consent. It doesn’t say restrict appointments to the Senate’s criteria.

  15. There is no requirement to have a committee and waste 30 hours doing one a week. That is an internal senate rule that can be dumped and the vote for confirmation goes to the Senate floor. But the left will do whatever in their usual meaningless fashion just like with whats his name from the DC Circuit court.

    There is no requirement to interview in the Constitution. Nomination by President, Confirmation by Senate. That’s the entire list of requirements 100% accurate and complete. Question is does that apply to circuit and appelate court nominations? Exactly the same. The Senate can opt NOT to use the committee system.

    https://fas.org/sgp/crs/misc/R43762.pdf

    Jun 17, 2016 – An Informal Qualification Requirement: Professional Distinction . … Obama Administration Selection of Lower Court Nominees: A Chronology of Usual ….. courts and the U.S. circuit courts of appeals—have often been the focus …
    The responsibility for making these appointments is shared by the President and the Senate. Pursuant to the Constitution’s Appointments Clause, the President nominates persons to fill federal judgeships, with the appointment of each nominee also requiring Senate confirmation. Although not mentioned in the Constitution, an important role is also played midway in the appointment process by the Senate Judiciary Committee.
    Presidential Selection of Nominees
    The need for a President to make a circuit or district court nomination typically arises when a judgeship becomes or soon will become vacant. With almost no formal restrictions on whom the President may consider, an informal requirement is that judicial candidates are expected to meet a high standard of professional qualification.

  16. There the; latest and most blatant. It started with Woodrow Wilson in 1909.

  17. Rosenstein has been nicely blocked as the only supervisor of Mewller. The new guy is acting as a temporary due to experience and availability. He’ll be confirmed either Sine Die or by the new Senate majority. Doesn’t matter what the left thinks or wants they have no power and no say on this and no one important cares what they think. Assuming they think. Hey when did that start happening?

    1. Excerpted from the article linked above [Warning: It’s another blast from the past as well as another bit of history repeating]:

      Frustrated by President Clinton’s “blatant disregard of the Judiciary Committee’s decision not to support his controversial choice” of [Bill Lann] Lee and intent on “preserv[ing] and strengthen[ing] the advice and consent role of the Senate,” Senators Robert Byrd (D-WV), Fred Thompson (R-TN), Strom Thurmond (R-SC), and Senate Majority Leader Trent Lott (R-MS) proposed the Federal Vacancies Reform Act of 1998 in June.41 The White House responded by threatening to veto the Act unless the Senate amended it in three substantive ways and stopped holding nominations “‘hostage’ for reasons totally unrelated to a nominee’s qualifications.” Ignoring those suggested revisions,
      the sponsoring senators reintroduced the Act for full Senate consideration in September 1998, but were unable to marshal the necessary votes to stop debate and force a vote.

    2. More on the history of sausage making from the article linked above:

      On October 21, 1998, however, the Act reappeared in an amended form. Retaining its essentials but modified to address some of the earlier concerns of Senate Democrats and the Administration, Congress passed the Act as a rider to the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999. Presented with the all-encompassing Omnibus Act only two weeks before the 1998 congressional election and one day after the House Judiciary Committee announced its intention to conduct impeachment hearings,
      President Clinton signed into law the Omnibus Act, and with it the Federal Vacancies Reform Act of 1998.

    3. All roads lead back to Nixon as excerpted from the article linked above:

      In 1973, President Richard Nixon asserted that the Vacancies Act was only one possible means of temporarily filling advice and consent positions and that the enabling statutes of some departments and agencies, including the Justice Department, were equally legitimate means of temporarily filling such positions. Specifically, the Nixon Justice Department claimed that 28 U.S.C. § 509 and § 510 permitted the Attorney General “from time to time to make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.” The Justice Department also claimed that these “vesting and delegation” provisions, which date from the Department’s establishment in 1870, made the time limitations in the Vacancies Act inapplicable to vacant positions in any department.

      The refusal of the Nixon administration and subsequent presidential administrations to comply with the Vacancies Act resulted in a significant number of temporary appointees serving in violation of Congress’s asserted limits and without the Senate’s advice and consent. At the Justice Department alone, at least forty-eight people between 1981 and 1998 served as temporary appointees in advice and consent positions for longer than the 120 days authorized by the Vacancies Act in effect during that time. And by February 28, 1998, sixty-four of the 320 total advice and consent posts in the Clinton administration (20%) were held by “acting” officials, forty-three of whom had served more than the 120-day limit without a nomination being submitted.

    4. Well then, maybe it’s all just another curious coincidence that the law that Republicans enacted to check The President’s appointment powers when Clinton was President is now all of a sudden unconstitutional when Trump is President just as was previously the case when Nixon was President before the Republicans had even enacted this supposedly unconstitutional law to check Clinton’s appoint power.

      I think there may be a pattern. A law is constitutional if Republicans enact that law to apply to Democrats. That same law becomes unconstitutional the moment Democrats attempt to apply that same law to Republicans. It is not that law that matters. It is not even the Constitution that matters. It is the party affiliation that matters. And the only thing that matters is the party affiliation. Republicans will need to change the name of their party real soon.

  19. The Constitution doesn’t matter.
    Obama and the democrats have spent the last 10 years attacking, subverting and undermining the Constitution and completely ignoring the Rule if Law.
    Too bad if they don’t like it when the game is turned on them by playing by the rules they made.

      1. Senators Robert Byrd (D-WV), Fred Thompson (R-TN), Strom Thurmond (R-SC), and Senate Majority Leader Trent Lott (R-MS) proposed the Federal Vacancies Reform Act of 1998 in June.

        Only one Democrat on that list. Tell us again how Robert Byrd was an elite White liberal. We never get tired of hearing you sing your sob songs.

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