The Washington Times captures a revealing back-and-forth between an Obama Justice Department lawyer and a conservative D.C. Circuit appeals judge over whether the text of the Constitution or court precedent should decide when the President can make recess appointments:
“Once you remove yourself from the principles set forth in the Constitution — inter-session versus intra-session — you are adrift,” said Judge Thomas B. Griffith.
He was joined in his pointed questioning by Chief Judge David B. Sentelle, who said the clause in the Constitution giving presidents recess appointment powers refers to “the recess,” which he said suggests the one at the end of each year, not the breaks Congress regularly takes for holidays, weekends or other reasons.
If the court were to rule that way, it would upset the balance that has been maintained over decades, and would conflict with another appeals court’s precedent — though that didn’t bother Judge Sentelle.
She warned that going that route would change the system of checks and balances fundamentally.
Sentelle sounds like my kind of judge. Let’s hope this is the beginning of a trend.