Federal

Bush Uses Recess Power To Appoint Reynolds

By Erik W. Robelen — April 10, 2002 5 min read

Without the Senate’s blessing, Gerald A. Reynolds has become the new civil rights chief at the Department of Education.

Democratic opposition had placed his nomination in question until President Bush late last month invoked a procedure included in the U.S. Constitution that circumvents the usual Senate confirmation process.

Many education and civil rights groups have contended, based on Mr. Reynolds’ past writings and statements, that the former utility-industry lawyer would not vigorously enforce civil rights laws. During his Senate confirmation hearing in February, Mr. Reynolds sought to dispel such concerns.

On March 29, Mr. Bush announced the “recess” appointments of five officials, including Mr. Reynolds as the Education Department assistant secretary for civil rights. The president has constitutional authority to make appointments during congressional recesses without Senate approval, though they are of limited duration.

Unless confirmed by the Senate, Mr. Reynolds’ appointment will expire in less than two years, at the beginning of January 2004.

A spokesman for Sen. Edward M. Kennedy, D-Mass., the chairman of the Senate Health, Education, Labor, and Pensions Committee, criticized Mr. Bush’s action.

“This again demonstrates this administration’s lack of commitment to enforcing civil rights laws,” said Jim Manley, Mr. Kennedy’s spokesman. He noted that the education panel, which held a hearing on the nomination in February, planned to vote on the nominee later this month. At the hearing, Sen. Kennedy questioned if Mr. Reynolds was qualified for the post.

The White House move has assured, at least temporarily, an appointment that was not exactly a shoo-in. The committee’s 10 Democrats and 10 Republicans were expected to line up on opposite sides, leaving Sen. James M. Jeffords of Vermont, the chamber’s only Independent, as the swing vote. Two days before Mr. Bush made the recess appointment, a spokesman for Mr. Jeffords said the senator, a former Republican, still had not made up his mind.

Secretary of Education Rod Paige “wholeheartedly” supported the president’s decision, said spokesman Daniel Langan.

“We’ve been pleased with the expedited process on other nominees, and were really hoping for a similar time frame” for Mr. Reynolds, Mr. Langan said. “Unfortunately, that wasn’t the case.”

The White House formally nominated Mr. Reynolds more than six months ago, in late September.

“The [office for civil rights] has much work to do, and as Jerry discussed during his testimony, he’s very eager to get started,” Mr. Langan said.

The department declined to make Mr. Reynolds available for an interview last week. Until the recess appointment, Mr. Reynolds was the final Education Department appointee still awaiting Senate confirmation. Every other nominee put forward by President Bush since he took office last year has been approved.

A Common Stratagem

Depending on what happens in the November midterm elections, Mr. Reynolds’ service could extend beyond January 2004. If Republicans regain control of the closely divided Senate, a freshly nominated Mr. Reynolds would likely win confirmation in the next Congress.

Mr. Bush is not the first president to use recess appointments to bring controversial nominees into an administration. President Clinton repeatedly frustrated Republicans, who at that time controlled the Senate and thus the confirmation process, by using the tactic.

In 2000, Mr. Clinton used a recess appointment to make Bill Lann Lee the chief of the civil rights division at the Department of Justice. Mr. Reynolds, in fact, testified against that choice.

In his new post, Mr. Reynolds, 38, will oversee the department’s office for civil rights, which is responsible for ensuring equal access to education and promoting educational excellence through enforcement of five federal laws that protect against discrimination based on race, national origin, sex, age, or disability.

Before becoming a consultant to the Education Department last year, following his nomination, Mr. Reynolds worked for nearly four years as the senior regulatory counsel for Kansas City Power and Light Co. in Missouri. From March 1997 to August 1998, he was the president of the Centre for New Black Leadership, where Mr. Reynolds has said he spent half his time on education issues.

Mr. Reynolds was a legal analyst for the Center for Equal Opportunity—a research and advocacy group that has opposed racial preferences—for about a year and a half, beginning in 1995.

Traditional civil rights groups have criticized Mr. Reynolds’ views. He has argued that racial preferences in college admissions and government contracting exacerbate racial tensions and discourage minority achievement.

William L. Taylor, the vice chairman of the Leadership Conference on Civil Rights, a coalition of civil rights and labor groups, criticized the Bush administration for not allowing the Senate to work its will on the nomination.

“It seems to me that it shows an enormous lack of confidence in their candidate,” he said. “While I’m not against recess appointments, in these circumstances it’s really disrespectful of the Senate to do it this way.”

But Phyllis Berry Myers, the president and chief executive officer of the Washington-based Centre for New Black Leadership, suggested the problem lies with the Democratic-controlled Senate.

“I think that this has been typical of how the committees have been handling this president’s nominees, particularly those that involve civil rights,” she said. Ms. Myers criticized Democrats for what she contends are “their same old tired, failed arguments that somehow they are the only arbiters of civil rights.”

Mr. Reynolds, she said, is “a competent, skilled attorney, and has a strong interest in education.”

Costly End-Run?

Richard A. Baker, the Senate’s historian, said last week that the original intent of recess appointments was not to push through controversial nominees, but rather to allow a president to fill vacancies during congressional recesses that in the country’s early years sometimes lasted many months.

Norman J. Ornstein, a senior scholar at the American Enterprise Institute, a Washington think tank, suggested that when recess appointments are used to make an end-run around the Senate, “you can get away with it, but you pay a price.”

“It is always a bad sign when an appointee is ‘recessed’ into office to avoid Senate trouble,” added Paul C. Light, an expert on presidential appointees at the Brookings Institution, another think tank here. “It weakens the authority of the individual to govern.”

But Mr. Langan disputed that notion.

“He’s the assistant secretary now, and he’s charged with vigorously enforcing the nation’s civil rights laws,” he said. “And one can expect him to do that.”

A version of this article appeared in the April 10, 2002 edition of Education Week as Bush Uses Recess Power To Appoint Reynolds

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