January 14, 2014

Conservatives Shoot Own Feet In Recess Appointment Case

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Can a president make a recess appointment if the Senate leaves town but declares itself in session anyway? The Supreme Court heard arguments on this question yesterday, and judging from the questioning, it looks like the answer is going to be no. Even the liberal justices seem inclined to tell President Obama that it’s up to the Senate to decide when it’s in recess, even if the recess is a bit of a sham. Jonathan Bernstein provides some of the background here.

Fair enough, I suppose. But it sure is bad timing for the conservatives who are pressing this case. After all, it doesn’t really matter anymore, now that Harry Reid has done away with the filibuster for presidential confirmations. Obama no longer needs to make any recess appointments because Democrats can just confirm his nominees in the usual way. That could change after the midterm elections if Republicans take back the Senate, but it probably won’t. And either way, the electoral landscape almost guarantees that Democrats will retain (or regain) control of the Senate in 2016.

In other words, effectively doing away with recess appointments probably won’t hurt Democrats at all over the next few years, but might very well hurt Republicans if they win the White House in 2016. Nice work, conservatives.

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