It has become routine in the Trump administration, but also was practiced too much during the Obama and second Bush administrations: The president, either unable to get his appointments confirmed by the U.S. Senate or fearing he won’t be able to, makes “temporary” appointments. Sometimes they’re named “acting” secretaries or undersecretaries or directors or whatever, sometimes “recess” appointments — often made with Congress in recess for as little as a week — but for all practical purposes they’re permanent. And they circumvent the intention of the Constitution.
That’s not precisely what Gov. Henry McMaster did last week after the Senate rejected his nominee to run the state Department on Aging. But it’s uncomfortably close. Close enough that it represents a disturbing and surprising act of bad faith on the part of a governor who has a reputation for respecting not only the letter but also the spirit of the law.
The issue is complicated by the fact that Mr. McMaster had appointed Stephen Morris as acting director of the agency in December, and nominated him for the permanent position. But last Tuesday, the Senate voted 41-2 to reject Mr. Morris. Two days later, The Post and Courier’s Gregory Yee reports, Mr. McMaster sent a letter to Mr. Morris asking him to remain until “a new director is appointed and officially confirmed by the South Carolina Senate.” Since the Legislature adjourns its regular session on Thursday, it could be January, or later, before that happens.
Mr. McMaster’s office argues that the governor simply maintained the status quo, and it’s certainly understandable to keep Mr. Morris in place on a short-term basis while he searches for a new director. But the emphasis should be on short term.
Critics complained that Mr. Morris was unqualified for the position, with some charging that he made derogatory comments to women and minorities and that he sides with the agency’s white male supervisors in disagreements. But the issue here isn’t whether Mr. McMaster made a good call in appointing Mr. Morris or whether the Senate made a good call in rejecting him.
The issue is that while state law clearly gives the governor the authority to appoint the director, it just as clearly requires Senate confirmation for that appointment. And when the Senate has overwhelmingly rejected the nominee, the governor has a responsibility to find someone else. In an unusual case like this, when the rejected nominee is already serving in the job, he needs to get that person out of the job — even if that means bringing in a temporary replacement — as soon as practically possible.
The governor’s decision is all the more disturbing because of the other, far more important appointment that also got rejected last week: Santee Cooper Chairman Charlie Condon. That much longer saga began last year, when the Senate adjourned without getting around to taking a vote on the appointment, the governor named Mr. Condon interim director, the Senate sued, and the state Supreme Court ruled in Mr. McMaster’s favor. Last week the Senate Judiciary Committee finally got around to voting, rejecting the former attorney general, 19-4.
Although we never saw a good reason for the Senate to reject Mr. Condon, that, again, is the Senate’s prerogative. We trust that Mr. McMaster’s decision to withdraw Mr. Condon’s nomination on Monday means he is looking for a new nominee who has the same willingness to take on the insular culture of the utility but won’t rankle even those senators who share his goals, as Mr. Condon did.
If Mr. McMaster doesn’t think the Senate should be able to reject his appointment to the Department on Aging, or to Santee Cooper, or to anything else, then he needs to persuade the Legislature to change the law. Unless or until he does that, he needs to accept what happens when senators reject his picks.