Another Democratic End Run Blocked

The Supreme Court today denied certiorari in a pair of cases involving the President's ability to make judicial appointments when the Senate is in recess. At issue is Article 2, Sec. 2, Cl. 3 of the U.S. Constitution, to wit:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This clause does not indicate how it must come to pass that the Senate is in recess, only that it be so. It does not specify that the Senate be formally adjourned.

Of course, the Democrats are trying to make some political hay out of the recess appointments of Charles Pickering and William Pryor to the Federal Circuit bench after the Senate Democrats filibustered efforts to get an up or down vote on these men. The Democrats hope that eventually the Supreme Court will put a restrictive reading on the meaning of the term "recess" such that the only time a President could make a recess appointment would be when the Senate has adjourned for the final time at the end of a session of Congress. Since recess appointments last only until the end of the Congressional session, this would completely gut the power.

Justice Stevens telegraphs where at least the liberal wing of the Court would go with this when the case reaches the Court following disposition by all lower courts:

"It would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the president has the constitutional authority to fill future (judicial) vacancies, such as vacancies on this court," Stevens wrote.

I hope at least 5 Justices disagree with Justice Stevens.

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