Supreme Court Skeptical of President's Recess-Appointments Argument

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Miguel Estrada
Miguel Estrada

The justices granted argument time to Senate Republican Leader Mitch McConnell, represented by Gibson Dunn's Estrada, whose own nomination to the D.C. Circuit by President George W. Bush was blocked by a Democratic filibuster. Estrada argued that the case "fundamentally is about who gets to decide whether the Senate is in recess, the Senate or the President? Our submission today is that the Senate gets to decide whether the Senate is in recess."

Estrada emphasized that the Journal of the Senate, the record of its official proceedings, states that the Senate was called to order and then adjourned on the disputed dates. That would be "conclusive, full stop," that the Senate was not in recess, he said.

"There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees," said Estrada. "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."

Contact Marcia Coyle at mcoyle@alm.com.

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    Recess appointments are obsolete. With jet travel and instant telecommunications, the Senate is never unable to advise and consent -- barring catastrophes such as full-scale war, electomagnetic storm, major asteroid strike, etc. Besides, requiring presidents to confer with Senators before nominating appointees will appropriately assure the citizenry that communists and facists never get within 10 miles of real power.

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