Few fights in Washington have become so nastily partisan as those over presidential appointments. Both parties have played a role in making it difficult for the president to staff his government with qualified people of his choosing. This led to a reshaping of the system that no one should have wanted and that could well increase the partisanship.
That’s the context in which to view last Monday’s Supreme Court proceedings, in which the justices heard oral argument on the president’s constitutional authority to appoint temporary nominees — without lawmakers’ consent — when the Senate is in recess. The court looks likely to place limits, perhaps severe ones, on the power.
In 2012, President Barack Obama appointed three members to the National Labor Relations Board after Republicans refused to confirm his picks — holding out even though the NLRB didn’t have enough members to function. During what would have been a holiday recess, Republicans forced the Senate to hold pro forma sessions exclusively to prevent the president from making recess appointees. Obama did so anyway.
Last Monday, Solicitor General Donald B. Verrilli Jr. argued that pro forma sessions can’t prevent the president from staffing the government. Given the justices’ skeptical reaction, Verrilli might count it as a victory if the court doesn’t eliminate virtually all recess appointments, not just those during pretend sessions. That’s what a federal appeals court did last year, staking out the activist stance that a president can exercise this power only for positions that become vacant between sessions of Congress. Given the way Congress now operates, those would be rare.
It’s true that the recess-appointment authority probably was intended to allow the government to function in an era when senators had to travel days or weeks to reach Washington, not as a way around intransigent lawmakers. But the judicial branch ought to show some caution in approaching the balance of power that the other two branches have forged over the subsequent two centuries.
Late last year, Senate Majority Leader Harry M. Reid, Nev., and his fellow Democrats eliminated filibusters on presidential nominees who require Senate consent except those to the Supreme Court. That lowers the stakes of a negative court ruling. But when control of the Senate and White House is split, lawmakers might be tempted to nullify laws by refusing to staff agencies they don’t like. This is no hypothetical issue; Republicans in 2011 balked at confirming a head of the Consumer Financial Protection Bureau, which needed a chief to operate, because they didn’t like the agency.
The right reaction to Reid’s Senate restructuring, and to the eventual court ruling, is for lawmakers to use their advice-and-consent powers more responsibly. If they had done that in the first place, neither issue would have boiled over. Presuming they don’t, however, it would be worth revisiting reforms that could reduce the opportunity for senatorial mischief.
In 2012, both parties agreed to remove some positions from the normal Senate consent process because they weren’t important enough to require the scrutiny. Additional such changes wouldn’t restore sanity to the system. But they could help.