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Still Ticking?Bolton's nomination as U.N. ambassador takes a licking, but Bush may have another strategy up his sleeve.

By Fred Kaplan
Posted Monday, June 20, 2005, at 8:28 PM ET

John Bolton was shot down in flames this evening—or was he?

Republicans in the Senate today moved to proceed with an up-or-down vote on John Bolton's nomination to become ambassador to the United Nations. Such a motion would require 60 votes. It attracted only 54—two fewer than last month, when a similar cloture vote was held. (On May 26, the vote was 56-42. Today's was 54-38.)

So, that's the end, right? After three and a half months of heated debate over the most controversial nominee to this slot in history (just two other nominees have failed to win unanimous confirmation), is Bolton's bid dead in the water?

Under ordinary circumstances, it would be. But there has never been anything ordinary about this drama.

Rumblings from the White House suggest that President George W. Bush may push Bolton in anyway, through a procedure known as "recess appointment." He'll wait until the Senate leaves town on its July 4 vacation break and simply declare Bolton to be the new ambassador, congressional confirmation be damned.

This would be legal. Article II, Section 2, of the Constitution provides: "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."

The idea was to ensure that vital posts of government aren't left vacant just because Congress happens to be out of session at the time. Over the years, the clause has been stretched to a stratagem. Bush's father made, on average, 20 recess appointments per year when he was president. Ronald Reagan made 30. Bill Clinton, faced with a more hostile Congress, issued nine per year. Dwight Eisenhower used the clause to appoint three Supreme Court justices—Earl Warren, William Brennan, and Potter Stewart—all before elections. John F. Kennedy ushered Thurgood Marshall into a circuit court bench to evade racist resistance from Southern senators.

The clause explicitly lets the Senate resume its powers of advice and consent "at the end of their next session." In most cases, any controversy surrounding the nominees has fizzled by that time. In Bolton's case, the Senate's next session ends in January 2007. If he has been U.N. ambassador for a year and a half by that time, he will have either redeemed or shamed himself and the Senate might vote accordingly.

Still, there is something extremely peculiar—beyond precedent, in fact—about the idea of Bush invoking his constitutional privilege on Bolton's behalf. In all other cases, presidents evaded Senate scrutiny from the outset. Bolton, on the other hand, has been through confirmation hearings at the Senate Foreign Relations Committee, which passed the nomination to the floor without endorsement; and he has twice failed to gain the three-fifths majority of a cloture vote. In other words, other stealth appointees have dodged anticipated bullets. If Bolton slips through, he will have been strafed, hit, and mortally wounded—then resurrected by a magic wand waving on the president's outstretched middle finger.

Will Bush escalate this battle to the next level and simply brush aside the Senate? My guess is, he will. Otherwise, why would he have taken the fight as far as he has? Why would he have kept today's cloture vote on the schedule? Surely he and his whips knew they didn't have enough support to win. The Senate Democrats had made a case against cloture on two grounds—not just on Bolton's dreadful qualifications for the job, but also on Bush's refusal to turn over documents relevant to the Senate's investigation. It was clear that, since last month's motion, the White House had lost—not gained—ground. Most likely, the president and his spokesmen will now repeat, with renewed intensity, what they've been saying for a while now—that the Democrats are obstructionists, that a majority of the Senate favors Bolton, and so he should simply be placed in the job if need be.

Still, President Bush might want to reassess the situation, and not just because Bolton is a lousy pick—a judgment that Bush does not share, in any case. He might want to consider the following question: At a time when he is touting the glories of democracy, does he want his ambassador at the United Nations—America's global spokesman—to have come by the job through such undemocratic maneuvers?

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Fred Kaplan is Slate's "War Stories" columnist and the author of Daydream Believers: How a Few Grand Ideas Wrecked American Power. He can be reached at .
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