Yesterday, Sen. Chuck Grassley (R-IA) named the first victim in his plan to retaliate against President Obama for naming recess appointees by seeking revenge against Obama’s nominees. Because DOJ Office of Legal Counsel head Virginia Seitz wrote an opinion that correctly reasoned that the president has the power to make recess appointments when the Senate is not available to confirm nominees, Grassley claimed that Seitz’s confirmation to this role is “likely to be the last confirmation that she’ll ever experience.”
To their credit, two former Bush Administration attorneys quickly denounced Grassley’s misguided campaign of vengeance:
“The Senator’s name-calling is misplaced,” said Jack Goldsmith, who served as head of the Office of Legal Counsel during President George W. Bush’s administration. “The legality of the Obama recess appointments is, as the Seitz opinion acknowledged, a close question. But much of Seitz’s opinion followed long-settled executive branch legal precedent, and when she encountered novel issues, she addressed them honestly in a reasoned analysis that she published for the world to see and criticize.”
“These OLC opinions involve very difficult constitutional issues as well as separation of powers,” said Richard Painter, a White House ethics lawyer during the Bush administration. “OLC lawyers should be free to render their honest opinion and not be threatened with adverse career consquences by either the White House or Congress.”
Seitz’s opinion did indeed confront a very difficult legal question, and she did indeed rely heavily on well-settled precedents. Ultimately, however, she forgot the first rule of keeping right-wing senators mollified — the Constitution only says what conservatives wish it said.