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Unleashing "Senator" Biden: What Happened to Judicial Appointments, the War Powers Resolution?

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Given the long senatorial career of Vice President Joe Biden, it is not surprising that the President should assign him liaison duties with Congress on budget negotiations. What is puzzling is that the Administration has not appeared to take advantage of Biden with regard to two subjects about which he is truly expert, judicial nominations and the War Powers Resolution.

On the first, there is no doubt among progressives that Senator Biden deserved mixed reviews for his performance as both chair and member of the Senate Judiciary Committee. Not being a "get over it" sort of a fellow, I still have bad feelings about Biden's management of the Clarence Thomas nomination. His performance at the Alito hearings was awful.

That said, there are few public officials with as deep a knowledge as Biden of how to choose judicial nominees and how to navigate the confirmation process. He is also passionate about a strong judiciary. As I write this, the Administration has nominated candidates for only 10 of the current 16 vacancies on the U.S. Courts of Appeals, and, amazingly, only 38 candidates for 72 vacancies in the District Courts. Why not give the Vice President a bigger role in doing something about this state of affairs?

Only slightly less obvious is Biden's potential utility in repairing interbranch checks and balances with regard to presidential war powers. Regarding Libya, the President has passed the 60 days that the War Powers Resolution implies as a permissible period for Presidents to initiate military action, for at least certain purposes, unilaterally. On May 20, White House Press Secretary Jay Carney said, "We believe the President has acted in a way that's consistent with the War Powers Resolution," but it is completely unclear why. Without clarification, President Obama has created an impression that he sees no greater need for congressional authority in Libya than his predecessors said they needed -- even as they sought it -- in Vietnam, the Persian Gulf, Kosovo, or Iraq.

A good way for President Obama to correct this impression is, first, to seek congressional authority for whatever continued involvement he thinks necessary in Libya and second, to put the Vice President in charge of negotiating reform of the War Powers Resolution. In 1995, then-Senator Biden introduced S. 564, a proposed Use of Force Act, which is still one of the most thoughtful attempts at recalibrating interbranch relations in this critical area.

S. 564 would explicitly recognize a longer list of justifications than the WPR acknowledges for the presidential use of military force, but it would also substantially strengthen the requirements for reporting to and consulting with Congress. Sixty days would remain the presumptive outer limit of unilateral presidential authority, but the President could extend that period only by certifying to House and Senate leaders that "an emergency exists that threatens the supreme national interests of the United States."

S. 564 might not be perfect, but it would go a long way towards restoring an appropriate balance between the sometimes unanticipated demands of national security and the ongoing imperative to preserve the rule of law. This is yet another issue to which the Vice President brings both passion and expertise. Why not let him have at it?

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