Lawsuit To Stop Clinton Appointment?

The Washington Times reported this morning that Judicial Watch, a conservative non-partisan watchdog group, is filing suit over Hillary Clinton's appointment as Secretary of State Wednesday. I contacted Judicial Watch this morning to confirm the information, and they denied that there is a lawsuit at this time. The group filed a complaint and are pressing the issue in the media. They cite the "emoluments clause" of the Constitution, also known as the "ineligibility clause", which prohibits Clinton from serving in the post. Senate Democrats are working on a fix which will allow the appointment to go through; the so-called "Saxbe fix," named for Nixon's Attorney General William Saxbe. Interestingly, President Bill Clinton used the same fix to appoint his Treasury Secretary, Lloyd Bentsen.

The issue arises as a result of the fact that the Secretary of State salary was increased during Senator Clinton's term in office, and the the clause states: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time."

Harry Reid is confident that a Saxbe fix, which is basically legislation to reduce the pay to pre-increase levels, will go through with little trouble. Reid spokesman Jim Manley said that the ineligibility issue has "been dealt with each and every time," it has come up and that they are "confident it can be dealt with this time."

A spokesman for Hillary Clinton was likewise confident in a fix. "This is a Harvard Law grad nominating a Yale Law grad here, so all parties involved have been cognizant of this issue from the outset," said spokesman Philippe Reines. "This issue has been resolved many times over the past century involving both Democratic and Republican appointments and we're confident it will be here too." Reines also referenced "frivolous lawsuits" brought by a "fringe groups," although I cannot find any actual pending legal action.

In fact, however, it has not been dealt with every single time, and there are some who object to the Saxbe fix, including ten Democratic Senators during the Nixon years, one of whom still serves in office.

When Richard Nixon appointed the eponymous Saxbe, 10 Democrat Senators objected on Constitutional grounds. Robert Byrd of West Virginia stated at the time that "we should not delude the American people into thinking a way can be found around the constitutional obstacle."

Judicial Watch argues that there is no getting around the clause, as whether the pay is reduced or not, the fact that it was increased is a plain prohibition to Clinton's appointment. During the Reagan administration, the Saxbe fix was deemed unconstitutional in the case of the appointment of Senator Orrin Hatch to the Supreme Court. At the time of Clinton's use of the Saxbe fix, law professor Michael Stokes Paulsen wrote an article for the Standford Law Review titled "Is Lloyd Bentsen Unconstitutional" that provides not only argument against a Saxbe fix but discussion of who might have standing to challenge it.

There is little disagreement over whether the clause prohibits Clinton's appointment. Jesse Choper, professor of public law at UC Berkeley said that "there's not much question they [Judicial Watch] have accurately stated the language of the Constitution, but the question is what do you do about it." That, of course, is precisely the question.