Senate Holds Pro Forma Sessions in Effort to Thwart Bush Recess Appointments

For instance, the Senate is convening today, November 23, 2007 at 10:00 for a pro forma session. According to the official Senate glossary, a pro forma session is a brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other.

In this case, the session is not being held merely because the Senate could not obtain the consent of the House of Representatives in order to adjourn for more than three days. Had Majority Leader Harry Reid (NV) asked for such consent, surely he would have gotten it.

Instead, the Senate is holding these pro forma sessions in order to thwart any effort by President George W. Bush to appoint judges or executive agency officials without having them subjected to the Senate's constitutional role of advice and consent of those appointees (i.e. confirmation). With Attorney General Michael Mukasey already confirmed, there aren't any high-profile appointees awating Senate confirmation but Reid must suspect that Bush has a judge or two he wishes to see on the bench before his presidency runs out. Otherwise, the Senate wouldn't go to this trouble. Bear in mind that a recess appointee can serve only until the end of the Congress during which he was appointed via recess. In this case, the 110th Congress does not conclude until Jan. 1, 2009.

The Senate held a pro forma session identical to today's on Tuesday, Nov. 20th. More pro forma sessions are scheduled for Nov. 27th and Nov. 29th.

At least one senator must be present in the chamber to convene the pro forma session. On Tuesday, it was Jim Webb (VA), who lives only minutes from the Capitol.

The Constitution gives the President the power to make recess appointments. The shortest-known recess during which a President made a recess appointment was ten days. Reid has scheduled these pro forma sessions to occur within no less than three days of each other. Technically, the Senate is not on recess, but is adjourning at the end of each pro forma session.

It would be a mighty bold move for a President to claim to appoint someone during a "recess" when the Senate itself has not recessed according to the terms of a motion to recess. Likewise, it would be unprecedented for a President to appoint a nominee during an adjournment of less than three days.

That said, it is clear that these pro forma sessions are merely form over substance. A President whose nominees were repeatedly stifled could argue that a series of pro forma sessions conducted over a two-week span entails a recess. Let's hope we don't have to walk down that constitutional path.

The Senate does not return to floor business until Monday, December 3.

On Dec. 3, the Senate will convene at 14:00 and will proceed to a period of morning business with Senators permitted to speak therein for up to 10 minutes each. There will be no roll call votes during Monday's session.

The December session is usually the best of the year.