A ninety-three-minute hearing on the Constitution’s grant of power to the president to make short-term appointments to fill vacancies was at times a somewhat anxious exploration of whether history or constitutional text should govern the extent of that power. On balance, text seemed to be winning out, and that appeared to favor the Senate more than the White House.The most hostile justice, not surprisingly, was Justice Antonin Scalia, who took a direct shot at President Obama. To read more about Scalia and this case, make the jump.
Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees. [...]
As the hearing unfolded, the only Justices who consistently asked questions or made comments that appeared to support presidential authority to act alone to make short-term appointments were Ruth Bader Ginsburg and Sonia Sotomayor.
Scalia's hostility to President Obama was undisguised in Monday's argument.
During oral arguments, Scalia shot back at an argument by U.S. Solicitor General Donald Verrilli that the Constitution's recess appointments clause is ambiguous enough to validate Obama's temporary appointments.Coincidentally, Scalia's own son Eugene enjoyed a recess appointment from President George W. Bush to be solicitor at the Labor Department in 2001. That was one of the first of Bush's 141 recess appointments (Obama has had 26). Eugene Scalia's appointment wasn't at issue in Monday's arguments, but the problem with over two centuries of recess appointments, and what striking down Obama's would mean to that history, to sitting appointees, and to the judicial decisions that some of these appointees have made, are all questions the Court faces.
"It's been assumed to be ambiguous by self-interested presidents," Scalia said, to "oohs" and laughs in the court room.
The justices suggest that they could narrowly upend Obama's appointments without having "a terribly severe impact because various doctrines would prevent the overturning of past decisions by judges and other recess-appointed officials." Given that the Senate did eventually confirm NLRB members, as well as Richard Cordray—the other controversial recess appointee made at the same time—it's not clear what legal effect the Court striking down those appointments would have. As always, though, arguments in the Court don't necessarily predict the actual decision.