December 1, 2012

Washington Scene: In Defense of Principle

By: Warren Belmar

In prior columns, I have shared my disappointment and frustration with the dysfunctional way in which Washington has avoided dealing with the ever-increasing number of critical issues facing the nation. Unfortunately, this year holds out the prospect for a worsening of the situation, with our elected officials apparently more concerned with their own re-election than with facing reality and addressing the difficult issues we elected them to resolve.

As senior lawyers we have a responsibility to raise our voices against insincere promises and political posturing undertaken for short-term political advantage, whether it is by those with whom we disagree or by those with whom we agree. All too often it is easier to remain silent when the political advantage works to advance positions we support. However, in so doing we place at risk the respect and trust which flows from adherence to principle and which nurtures the comity needed to make our institutions of government function. One need look no further than polls reporting on the low esteem the public has for our elected officials and institutions of government for confirmation of the need for corrective action which allows for the statesmanship needed to craft bipartisan compromise solutions.

While I am sure each of you reading this column could provide your own examples of such conduct by members of the House, Senate, or Executive Branch, here are two recent examples involving Democrats and Republicans alike that left me frustrated with the elevation of politics over principle. In each example, my frustration was not about who was right and who was wrong on the substance of the issue, but rather with the ease with which principled positions were abandoned for diametrically opposed positions.

The first example involves the interplay of the powers of Senate and the Office of the President with respect to recess appointments. By way of background, during the last years of President George W. Bush’s tenure, the Democrat-controlled Senate, with the support of then-Senator Barack Obama, adopted the principled position that it could use pro forma sessions every three days to preclude a claim that it was in recess. This action by the Senate was an exercise of the checks and balances inherent in the separation of powers created by the Constitution. The practice was continued by the Democrat-controlled Senate into the Obama Administration. As a result, President Obama, like President Bush, was believed to be unable to make recess appointments. It was in this context that President Obama, frustrated with Republican filibusters blocking Senate votes to confirm his nominees, decided unilaterally and without discussion that the Senate’s pro forma sessions were a sham, that the Senate was indeed in recess, and that he therefore could exercise his power to make recess appointments. While the merits of President Obama’s actions will eventually be resolved by the judiciary, it is astonishing that Senate Democrats have been silent and even acquiescent in the face of this assertion of almost unfettered presidential power to make recess appointments which deprive the Senate of its “advise and consent” responsibility.

Another example of silence in the face of abandonment of a principled position involves the interplay of the Senate rules governing filibusters with the Senate’s “advise and consent” responsibility under the Constitution. By way of background, during the Bush Administration a number of judicial nominees for the circuit courts and the Supreme Court were subjected to Democrat-led filibusters. In response, many Republican Senators asserted the principled position that judicial nominees to those courts had a constitutional right to an up- or-down vote. Today, many of those Republican Senators have changed their position in response to President Obama’s nominees for those very same courts. Now they have adopted the principled position that the Senate Democrats advanced during the Bush Administration to the effect that the Senate’s responsibility to “advise and consent” on a nomination empowered members of the Senate to filibuster a nomination and thereby deny the nominee an up-or-down vote. The reason for silence at this change in Republican position is that Senate Democrats have now adopted the former position of the Senate Republicans, and they object to the use of filibusters to deny President

Obama’s judicial nominees an up-or-down vote. Suffice it to say, short-term politically expedient fixes for long-term structural politically inexpedient problems have not and will not work. And the Washington scene will only improve when we have elected officials who do not abandon principled positions for the sake of short-term political advantage and who will command the trust and respect necessary to participate effectively in crafting, and securing public acceptance for, the difficult, bipartisan compromise, long-term solutions that are so sorely needed.