I grimaced and had Brown over to the White House when I heard about this. I told him that I had no intention of firing him, and that his performance during the hurricanes had been good. My question was what were his intentions for staying at FEMA?
“I was planning to leave at the end of the year, sir, if that is all right. I have been getting some interesting offers from a few outfits over on K Street, if you know what I mean.”
I nodded. “I am sure you have had some offers. I imagine you’ll also be working on some political fund raising for a few people.”
He smiled and nodded. “The Vice President has made a few comments along that line.”
“That’s only because John McCain is a smart guy, and is going to win this thing! Okay, so, you are going to leave by the end of 2006, but not right away. That works for me, and I’ll support you, but don’t be surprised if Harry Reid makes an ass of himself along the way. He is definitely going to be holding hearings on Katrina, and you and your agency are going to be giving testimony. I wouldn’t be able to stop that even if I tried, and it would be hopeless for me to fight it.”
“What are you going to do about the hold on appointments?” Brown asked.
“I am not sure, at least not yet,” I answered, with another grimace. “Listen, about you and FEMA, you’re going to be leaving there. Now, don’t get me wrong, but you’re political, a money man and a fixer. That’s why George put both you and Allbaugh over there. I’m not saying you both didn’t do good jobs, but I want the next guy to be a pro, you understand.”
“I follow you, Mister President. You’re right, that’s how we ended up there,” he agreed.
“So, like I said, you both did well, but I’m going to want one of your long time people taking over when you leave. Figure out a name or two for me. Neither of us wants to see an amateur in that job. If the climate scientists are right, the problems are going to increase, not decrease!”
“Crap!” he said lowly. He nodded in understanding and I let him go at that. I smiled to myself, though. Mike Brown would be leaving his job at some point, but not in disgrace. Assuming he did a decent job as lobbyist and fundraiser over the next couple of years, he was a prime candidate for a Cabinet post in a McCain administration. Commerce or Transportation would be naturals for him.
I thought about it, and then called and asked Frank Keating to come over.
John Ashcroft had resigned as Attorney General in February of 2005, after suffering through a very severe bout of pancreatitis in the spring of 2004. He was much more conservative than I was, and a whole lot more religious, but the man had integrity, and he fiercely protected the Constitution. During the remainder of 2004 he and I spoke frequently, and he told me he would resign right after the Inauguration. He liked my idea of Frank Keating as a replacement, and between the two of us we got Frank on board. Frank had been out of office since the start of 2003, and had taken a couple of positions on boards of various companies. He accepted my offer and we managed to get him confirmed as the new Attorney General in 2005.
That’s not to say it was easy. There was a lot of rancor coming out of the Senate at this, and they delayed his confirmation for over a month. It wasn’t that Keating was all that controversial a fellow, or that he hadn’t been a decent Governor of Oklahoma. It was that it was a way for Harry Reid to be difficult with me without spending a lot of his influence doing so. It cost me more to confirm him than it cost Harry to slow things down. Harry also slowed down a number of Federal judgeships as well, again, at very little personal cost. Worst of all, we now had two empty seats on the Supreme Court. Sandra Day O’Connor had stepped down and William Rehnquist had died, and the Senate Judiciary Committee had my nominees (one male, one female, both moderates) on hold.
By 2006 I was getting extra pissed at this, so I simply decided to say ‘Screw you!’ to the Senate. On Monday, February 20, the Senate recessed for a week. On Thursday morning, February 23, I went down to the Press Room during the morning Daily Press Briefing, and made a statement. In part, it read:
“The nation’s business does not end when the Senate is in recess. Crime still occurs when the Senate is in recess. The police still catch criminals when the Senate is in recess. The courts still function when the Senate is in recess. If the Senate decides to hold up all Federal appointments to the Justice Department, that is their right to do so. I have put forth names of qualified men and women to fill vacant positions throughout the Justice Department, and the Senate has put these names on hold, in some cases for many months. We can no longer wait and hope that crime will diminish during this period. Later this afternoon I intend to swear in, as recess appointments, the following people…”
With that I named an Associate Attorney General, a Deputy Solicitor General, two U.S. Attorneys, and ten Federal Judges. (A recess appointment of a Supreme Court Justice might well be unconstitutional; the Senate had officially expressed their displeasure after Eisenhower did it three times; I didn’t dare try that one!) I had spoken to all of them beforehand, and all were stashed in hotels in Washington, waiting for this moment. There was no way for the Senate to reconvene in time to stop this. I did, however, warn each of the people involved that the Senate might well refuse to confirm them, and that some, if not all of them, might be out of a job in a year’s time. While most of my nominees were Republican, as a bipartisan gesture I had named three Democrats as Federal judges, and they had all grinned and said they were the safest of the bunch.
Well, there’s nothing quite like throwing bombs into a packed crowd to get the adrenaline pumping! The Democrats in the Senate were foaming-at-the-mouth mad at me for being so presumptuous to deny them their Constitutional duty to advise and consent. How dare I act so illegally! This was worthy of impeachment!
Despite it being a recess, Harry Reid and Arlen Specter, the Chairman of the Senate Judiciary Committee, which was where all the nominees were bottled up, managed to make it onto television that night. Unlike Harry, Arlen and I got along okay, but he was under orders from Harry to put a cork in the bottle. Both men were in full blown high dudgeon, and demanded that I cancel these illegal and ill-considered appointments, and promised a court fight when they got back from recess.
They might actually be right. The idea of a recess appointment dated back to the 18th Century, when the Senate was out of session more often than not, and a President couldn’t afford to wait months to appoint somebody. In theory, he could appoint somebody as needed, and they would stay in office until the end of the current Congressional session, at which point they would need to be confirmed by the Senate to keep their job. This worked fairly well up until the 20th Century, when travel speeds had increased to the point the Senate could actually stay in town longer. Theoretically the Senate was in recess whenever they were out for more than three days, which is why I waited until Thursday to do this. On the other hand, ever since Clinton had been President, the Senate had begun having sham sessions. They would go away, and every third day some Senator, whoever was in town, would show up, bang a gavel, say they were in session, bang the gavel again, and go back into recess. It was total fakery.
Screw it. I threw it back in their laps. I claimed the sham sessions were just that, fakes, and dared them to push me on it. It would take a court challenge to throw the nominees out, or they would simply have to stop taking so many recesses and actually get some work done once in awhile. They could scream all they wanted, but in the meantime, the Justice Department was fully staffed. When the Dems started screaming on the Sunday morning news shows, our response was always that these were perfectly qualified people, most of whom had previous experience in the Federal justice system, that the delays were nothing more than political gamesmanship by the Democratic Party, and actually, what was the real problem? That I had candidates that weren’t qualified, or that I was calling a halt to their little game of sham sessions? In the meantime, the President was giving this tempest in a teapot the consideration it deserved, which wasn’t much. He was going to keep on serving the people of the United States, even if the Senate refused to.