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A Moment of High Constitutional Candor

As John Steele Gordon predicted, the Supreme Court argument on President Obama’s “recess” appointments was “high constitutional drama.” SCOTUSblog reports there were long lines and cameras outside, a full press gallery inside, and both White House spokesman Jay Carney and Senate Minority Leader Mitch McConnell in attendance. The Court appears ready to rule that Obama exceeded his constitutional power to fill “Vacancies that may happen during the Recess of the Senate” by deciding for himself the Senate was in recess when the Senate considered itself in session. 

There was also a moment of what we can call “high constitutional candor” during Miguel Estrada’s amicus argument on behalf of McConnell. As John noted, President Obama nominated two people to the NLRB on December 13, 2011, days before Congress adjourned for the holidays, and then purported to give them recess appointments on January 4, 2012, one day after the second session of the 112th Congress began. Estrada argued it is undisputed that the Appointments Clause gives the Senate an absolute veto over nominations, and there is no power set forth in the Constitution to use the Recess Appointments Clause to overcome Senate opposition: 

And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the Appointments Clause actually calls for. That was not viewed as an evil by the Framers. That was what the Framers unanimously agreed was going to be the principal means for appointments … 

[The president] could have had a better legal argument in attempting to claim that between December 3oth and January 3rd there was at least an arguable inter-session recess. And he did not do that. Why didn’t he? Because by waiting until the convening … of the second session of the 112th Congress, by making an appointment on January 4th instead of the morning of January 3rd, he gives an extra year to his appointees to serve … It is a complete abuse of the process. It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president’s nominations. 

What the Framers contemplated in coming up with a joint power of appointment was you have to act jointly. You have to play nice. And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate. 

It was also a moment of “high constitutional irony,” because Miguel Estrada was nominated by President Bush in May 2001 to the D.C. Circuit Court of Appeals, but withdrew his name more than two years later, after his nomination was blocked by Senate Democrats using their filibuster power. Estrada is a Honduran immigrant who went to Harvard law school, clerked for Supreme Court Justice Kennedy, served as a prosecutor in the U.S. Attorney’s Office in New York and as assistant solicitor general during the Clinton administration. His credentials could hardly have been higher. But Democrats did not want Bush to get credit for nominating a Hispanic to a court sometimes seen as a steppingstone to the Supreme Court. 

Here is the irony: after Estrada finally withdrew his name in 2003, Sen. Edward Kennedy told the press the withdrawal was “a victory for the Constitution” because “it reflects a clear recognition by Miguel Estrada, and, hopefully this White House, that under the Constitution the Senate has shared power over judicial appointments.”



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