Senator to Holder: Was Reid Wrong to Use Pro-Forma 3-Day Sessions to Thwart Bush’s Planned Recess Appointments?

By Melanie Arter | March 8, 2012 | 3:03 PM EST

Attorney General Eric Holder testifies on Capitol Hill in Washington, Tuesday, Nov. 8, 2011, before the Senate Judiciary Committee hearing in the arms trafficking investigation called Operation Fast and Furious. (AP Photo/J. Scott Applewhite)

( – Sen. Lamar Alexander (R-Tenn.) asked U.S. Attorney General Eric Holder during a Senate hearing Thursday whether then Senate Majority Leader Harry Reid (D-Nev.) was wrong in 2007 when he “devised the plan for pro-forma three day sessions” upon hearing that President George W. Bush was about to make recess appointments.

Alexander explained that On Nov. 16, 2007, Reid said, “‘With the Thanksgiving break looming, the administration has informed me they want to make several recess appointments. As a result, I’m keeping the Senate in pro-forma to prevent recess appointments until we get back on track.’”

“And the next year, he said, ‘We don’t need to vote on recess. We’ll just be in pro-forma session. We’ll tell the House to do the same thing.’ President Bush didn’t like it, but he respected it. So are you saying the president, not the Senate, can decide when it’s in session for purposes of a recess appointment?” Alexander asked.

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“I think … what we have to do, and what we have done in this OLC [Office of Legal Counsel] opinion is look at history, look at precedent, look at the law, use some common sense when it comes to the approach of whether or not the Senate is actually in session,” Holder said.

“Well was Senator Reid wrong?” Alexander asked, during the hearing for the Senate Appropriations Subcommittee on Commerce, Justice, Science and Related Agencies.

“Well, the determination we made here was that with regard to those, that 20 days in which those pro-forma sessions were occurring was that those were in fact…” Holder said before Alexander interrupted him.

“But the Senate had decided it was in a three-day session, according to the Reid formula, so was Reid wrong about that?” Alexander asked again.

“Well, I’d have to look at exactly what occurred during that three day period, but given what the facts that we presented to … OLC in this instance, I think the determination that they made was correct,” said Holder.

Alexander said he didn’t see “why the president couldn’t look at the Senate and say I’m going to send up a Supreme Court justice, and I’m going to skip advise and consent. I’m astonished by this really, and I would think Democratic as well as Republican senators would honor the Reid formula that President Bush honored.

“The Senate did the very same thing in January, and the president, nevertheless, made four appointments during a time when constitutionally, he shouldn’t have, according to all the precedent that I have seen,” Alexander added.

“The only thing I’d correct is that the determination was not made by the president. The determination was made by the office of legal counsel and then shared that opinion with the president, and the president made the decision as to what he wanted to do,” Holder said.

“He made the decision not to respect the Senate’s decision about when it’s in session and when it’s not, which to me is a blatant lack of regard for the constitutional checks and balances and something that we ought to avoid,” Alexander said.

Alexander opened his line of questioning by asking Holder what he would say if “President Barack Obama asked whether Obama could skip the Senate’s advice and consent and appoint a Supreme Court nominee while the Senate has gone to lunch.”

“Gone to lunch? That would not be a sufficient recess,” Holder said.

“Well what if he said, ‘They’re going to lunch. They’re going to recess for lunch and for dinner and they won’t be back until tomorrow.’ Will that be a sufficient recess?” Alexander asked.

“Well, I think what we’re getting at, if you look at that OLC opinion…” Holder started to say.

“I’m asking your opinion, Mr. Attorney General,” Alexander said.

“Well, I associate myself with that OLC opinion,” Holder responded.

Alexander asked if that meant that Holder agreed with the opinion, to which Holder replied, “Yes.”

“Then that means that the president, not the Senate, can decide when it’s in session for purposes of … advice and consent,” Alexander said.

Holder said it was necessary “to look at the reality, the totality of the circumstances, in determining whether or not the Senate is actually in session as that term has historically been used.”