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Recess Appointments Not Unique

As a recess appointee, John Bolton (search), the newly placed U.S. ambassador to the United Nations, is neither unique nor necessarily politically and diplomatically hamstrung.

Click in the box to the right to watch a report by FOX News' Major Garrett.

"Here in Washington, it may look a little tainted, but in foreign ministries around the world they know that they're dealing with somebody who has the authority of the president and indeed of the United States when he signs his commission," said Stephen Hess, scholar emeritus at the Brookings Institution.

The president's power to make a recess appointment was originally conceived by the framers of the U.S. Constitution to fill sudden vacancies during the long congressional recesses. But such appointments have become increasingly common even as the recesses have become ever shorter. Appointments are set to expire at the end of the Senate's next session.

So far, President Bush has made 110 recess appointments. Among the most controversial were William Pryor (search) to be a judge on the 11th Circuit Court of Appeals and Charles Pickering (search) to be a judge on the 5th Circuit Court of Appeals.

Pryor was appointed in February 2004. After the 109th Senate convened this year, the body confirmed Pryor in June. Pickering was appointed to the appeals court in January 2004. Facing continued Senate hostility, he retired from service when his recess appointment expired last December.

"Usually, when you have a Republican president, the Democrats don't like recess appointments, and when you have a Democratic president, Republicans don't like recess appointments," said Michael Barone, author of the Almanac of American Politics 2006.

Modern presidents have used this power of recess appointments to side step a variety of Senate obstructions. President Clinton made 140 recess appointments during his two terms. The first President Bush made 77 in one term. Ronald Reagan had 240 in two terms.

"There's firm basis for the recess appointment, there's nothing immoral, even you could say unethical about it, it's just part of the government structure in the United States," Hess said.

The recess appointment dates to earliest days of the Republic when President George Washington tapped John Rutledge as Supreme Court chief justice in 1795. The Senate had rejected the nomination.

President Eisenhower placed three justices on the Supreme Court through recess appointments — Earl Warren in 1953, William Brennan in 1956 and Potter Stewart in 1958. The Senate later confirmed all three.

President Kennedy used his recess appointment power in 1961 to put Thurgood Marshall on the 2nd Circuit Court of Appeals, placing him on a path to become the nation's first black Supreme Court justice.

"Thurgood Marshall was the very successful advocate for the NAACP legal defense fund, the Southern segregationists opposed him root and barrel and President Kennedy appointed him with a recess appointment," Barone explained.

In many cases, including Bolton's, presidents have used recess appointments to counter a Senate filibuster or the threat of one. As a matter of checks and balances, the recess appointment is more firmly rooted. It's actually in the Constitution whereas the filibuster, a Senate delaying tactic first applied with regularity in the 1850s, is not.