The use of the tactic in this situation was undeniably a political power play. Then again, it was also a response to a nakedly political power play on the part of Congress. In the past, the senate would, while technically in recess, hold "meetings" that consisted of one senator going in, gaveling a meeting to order (despite the fact that no other senators might be there), and then adjourning. Last year, during one such senatorial recess, Republicans in the House of Representatives used "the power of the House to block the Senate from adjourning for more than three days." President Obama decided to challenge these pro forma sessions and made the appointments that have here been declared unconstitutional.
The ruling judges are all Republican appointees, so the spectre of partisanship hangs over their decision. The fact of the matter is, though, the decision is correct. As distasteful as the congressional strategy is, a president can not simply declare Congress in or out of session as he sees fit. Of course, this ruling opens up the possibility for even greater governmental dysfunction than we've sadly grown accustomed to. Nowadays, many senators see their role in the appointment process not so much as "advise and consent" but as "pontificate and obstruct." Unless and until we find a way to minimize partisanship in the confirmation process, we face the prospect of never-ending battles over filling even the lowest level technocratic posts. As much as I have appreciated attempts by Democratic congressmen to thwart the most retrograde appointments of Republican presidents, I am not blind to the fact that such constant battling weakens government's ability to function, as well as undermining the public's faith in government as a whole. What is to be done?
Over the next few months, my college will be hiring a number of new full-time faculty members. It's a fairly drawn out process, but first the college sends out a job announcement listing "minimum qualifications" (MQs) for the job. Applicants must demonstrate (via resumes and questionnaires) that they meet these MQs before they are brought in for interviews. The interview process is lengthy, but the college faculty and administration can rest assured that whoever is ultimately hired will at least be qualified for the job.
I would humbly suggest that a similar approach be adopted by other branches of government. A list of MQs for every position should be drawn up--perhaps a list of disqualifying factors as well. Any candidate proposed by a president who meets these MQs should be voted on--straight up or down, no filibustering allowed. Perhaps Congress could be allowed a maximum number of rejections of people who possess the MQs. That way, extreme partisans would have to take care before rejecting a candidate, lest they waste their "peremptory challenges" on candidates who may turn out to be the most palatable choice.
I'm just spitballing here. I have no idea how these ideas or others like them would be adopted at the federal level. But something needs to be done. Presidents should not flout the will of Congress, but neither should Congress stymie the ability of government to function out of purely partisan motives. Recess appointments would not seem so attractive to presidents if Congress would actually do its job when in session.
