Monday, January 9, 2012

Hey, NYT: The Recess Question Is Contested

It's almost enough to make me start another round of cranky blogging. Here's Jonathan Weisman in yesterday's NYT piece on the recess appointments:
To many Republicans and some constitutional scholars, President Obama’s decision last week to ignore a sitting Senate and sidestep the confirmation process for several appointees risked nothing short of an end to the Senate’s role of providing advice and consent on presidential appointments...That compelled Mr. Obama to escalate matters further on Wednesday, making recess appointments even though the Senate was technically not in recess.
Awful. Clearly, Barack Obama doesn't believe that "a sitting Senate" is "technically in recess."  That's exactly what the fight is about! Weisman isn't just coming down on the Republican's side of the dispute; by omnisciently declaring that the current period simply isn't a recess, he misstates what the entire dispute is about. In fact, the question is entirely whether the Senate is currently "sitting" -- whether the current period is a series of recesses or a recess sufficient to qualify for the Constitutional recess appointment power to kick in. But by phrasing it the way he does, Weisman implies that the issue is whether the president can just ignore the Constitution when he's frustrated by (what he sees as) Senate misbehavior.

That's not to say that reporters should always be neutral about this stuff. If Weisman, after careful research, believed that Obama was clearly on the wrong side of this, then I'd be fine with wording that would reflect that. Or, if he thought Obama had the better case, that too should be reflected in how he writes it up. So instead of "making recess appointments even though the Senate was technically not in recess," Weisman could in my view have legitimately taken a neutral tone: "making recess appointments based on a contested claim that the Senate was in a Constitutionally sufficient recess." Or a anti-appointments view: "even though his claim that the Senate was in a Constitutionally qualifying recess was disputed by most experts." Or a pro-appointments view: "although Republicans and some experts claim that the Senate is actually in session."

However, in fact Weisman doesn't even deliver enough in the article to justify any of that. The "experts" he cites outside of a White House lawyer are Bill Frist's former chief of staff and David Addington (Dick Cheney's former chief of staff), both of whom oppose the move; and the two Bush-era lawyers (Steven Bradbury and John Elwood) who support it. No neutral experts are cited at all! Only advocates, and only Republican advocates at that, at least excepting the Obama administration. That Weisman winds up adopting Addington's view, and acting as if it's some sort of consensus, only makes it worse.

Awful article on an important, and somewhat tricky, subject. NYT readers deserve a lot better.

1 comment:

  1. The notion of quoting Addington on what's constitutionally allowable is, shall we say, amusing.


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