Supreme Court Turns Skeptical Eye on Obama’s Appointment Power

Just back from their own long break, Supreme Court justices set out Monday to resolve a politically charged fight over when the Senate’s absence gives the president the power to make temporary appointments to high-level positions without senators’ approval.

The legal battle is the outgrowth of partisan rancor over presidential appointees that has characterized Washington over the past 20 years, and especially since President Barack Obama took office in 2009.

Recess appointments have divided Democrats and Republicans, with views changing depending on which party holds the White House. But during more than 90 minutes of arguments Monday, the Obama administration was hard pressed to find support for its stand in favor of recess appointments from justices named by Republicans and Democrats alike — including Obama.

Justice Elena Kagan, an Obama nominee, seized on the political dispute to make the point to Solicitor General Donald Verrilli Jr. that “congressional intransigence” to Obama nominees may not be enough to win the court fight.

Kagan, Verrilli’s predecessor as Obama’s top Supreme Court lawyer, suggested that it “is the Senate’s role to determine whether they’re in recess.”

The court is writing on a blank slate as it considers for the first time the Constitution’s recess appointments clause. That clause allows the president to fill vacancies temporarily, but only when the Senate is in recess.

The constitutional issue may be new to the court, but two justices lived through the political tussle over nominations. Both Chief Justice John Roberts and Kagan were nominated to the federal appeals court in Washington but saw their nominations blocked in the Senate. Roberts eventually won confirmation, but Kagan did not. And one of the lawyers involved in Monday’s case withdrew his nomination to the same court.

The Senate has “an absolute right not to confirm nominees that the President submits,” Roberts said.

The administration was “latching onto” the constitutional provision to combat the Senate’s refusal to act, even though it was written to deal with an era when horseback was the fastest mode of transportation and Congress was absent from Washington for long periods, Roberts said.

Even Justice Ruth Bader Ginsburg, perhaps Verrilli’s most sympathetic questioner, said at one point, “I think to be candid, the Senate is always available. They can be called back on very short notice.”

Monday’s case, the first argument at the court in more than a month, is a dispute over Obama’s appointments to the National Labor Relations Board in January 2012. Republicans and employers who objected to NLRB decisions made by those Obama appointees say the Senate was not in recess when Obama acted, and so any decisions made by the board were illegitimate.

A decision is expected by late June.

The case is National Labor Relations Board v. Noel Canning, 12-1281.

This article appeared in print on page 3 of the January 14th, 2014 edition of Hamodia.