As expected, the Obama Administration is asking the Supreme Court to review a ruling by the United States Court of Appeals for the District of Columbia Circuit that nearly eliminates the ability of a president to make “recess appointments” to federal agencies.
With Senate Republicans abusing the filibuster at an unprecedented rate, a recess appointment sometimes is the only way to fill vacancies. Indeed, Republicans have used the filibuster to cripple agencies they don’t like, such as the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau.
But when the president used his only alternative, recess appointments, the D.C. Circuit broke with decades of precedent and decisions from every other circuit to rule on the issue to invalidate those appointments. The decision being appealed now, discussed in detail in this previous post to Justice Watch, left the entire NLRB in limbo. That post also discusses the fact that this kind of extreme activism is nothing new for the conservatives on the D.C. Circuit – a court widely viewed as the nation’s second most powerful.
They get away with it because there are four vacancies on the eleven-member court, and among the remaining seven judges, conservatives hold a majority. Senate Republicans are going to extremes to try to keep it that way. First, they filibustered an excellent nominee, Caitlin Halligan, and now some Republicans are trying to eliminate three of the Court’s seats.
The Supreme Court should hear this challenge as soon as possible. President Obama needs to move full speed ahead and send the Senate enough nominees to fill every vacancy on the court. And Senate Democrats need to reform Senate rules, if that’s what it takes, to break the Republican addiction to obstruction.