Bush warned not to sidestep Congress on Bolton nomination

The Bush administration's plans to reappoint John Bolton as its top diplomat at the United Nations may run into legal snags, warn lawyers who specialize in US constitutional law. "It would be directly at odds with the Senate's advice and consent function," says constitutional lawyer Christopher Rhee of a potential Bush administration move to reappoint Bolton without Congressional approval. The United States president has the powers to appoint executive branch officials on his own when Congress is in recess, Rhee says, but those powers may not be fully applicable as far as the Bolton case is concerned. "It would likely be without precedent," says Rhee in a legal analysis prepared for a prominent civil society group critical of the administration's domestic policies as well as its unilateralist stance on international issues. Rhee and his colleagues at the law firm Arnold and Porter LLP think Bush may use the Recess Appointment clause of the Constitution or the Federal Vacancies Reforms Act to justify Bolton's re-nomination. But in either case, it will be hard for the administration to escape legal scrutiny at a time when the Democrats are about to take control of the Senate, they add. If Bolton is appointed for a second time under the Recess Appointment Clause, he cannot draw a salary unless nomination is confirmed by the full Senate, which many believe is a highly unlikely proposition. As in the past, the Senate has declined to act on Bolton's nomination. The confirmation for his re-nomination requires at least a two-thirds vote, a virtual impossibility given the current political climate in Washington. Bolton was appointed to the UN post by Bush in March 2005 after the Senate Foreign Relations Committee refused to endorse his nomination, and referred his case to the Senate for its consideration. The Senate went into recess without deciding the matter. Since his appointment as ambassador, Bolton, a self-styled ultra-nationalist, has drawn scathing criticism from opponents who believe that his feverish ideas in support of unilateralism and arrogant style in diplomacy have tarnished the US image in the eyes of the outside world. Bolton also happens to be one of the hawkish Bush administration officials who championed the cause of cleansing Iraq from the so-called weapons of mass destruction and justified the military invasion of that Middle Eastern nation. Experts say Bush may also decide to nominate Bolton as acting ambassador under the Federal Vacancies Reform Act, but in that case his tenure would be subject to statutory time restrictions. In their opinion, the plain language of the act precludes the president from designating Bolton, because it provides for the replacement of an officer in a Senate-confirmable position who "dies, resigns, or is otherwise unable to perform the functions and duties of the office." "Thus," according to Rhee, "it clearly contemplates the replacement of one officer with another–not the reappointment of the same officer." In their analysis, the lawyers associated with Arnold and Porter say it would be prudent for Bush to await the confirmation of Bolton or submit a different nominee to the Senate. Bush has received similar advice from some lawmakers from his own party. Lincoln Chafee, a Republican senator who was defeated by his Democratic rival in Rhode Island last week but remains in his post until the end of the year, said it would be "illogical" to endorse Bolton's nomination. "I am not going to endorse something the American people have spoken out against," Chafee said in a recent statement, referring to the Bush administration's foreign policy. Meanwhile, other politicians from both sides of the political divide have also stressed the need for bipartisanship. Considering that it's time for the Congress to complete its unfinished business before it dissolves next month, the group that received the legal analysis from Arnold and Porter said Bolton's nomination would only add to further "contempt" for the administration. "Both Republicans and Democrats have refused to confirm Mr. Bolton because they understand the critical importance of the UN-US relationship," said Scott Paul of Citizens for Global Solutions, a Washington, DC-based independent group that promotes multilateral solutions to problems of global conflicts, freedom, and human rights. "They agreed that we need a smart, tough, consensus-building diplomat," he added. "But the Bush administration's stubborn commitment leaves one to wonder if they really got the message."