Roll Call

Hawkings Here

By David Hawkings
Posted at 8 p.m. on Jan. 12

One of the biggest congressional stories of the decade starts unfolding Monday — not at the Capitol, but across the street.

The Supreme Court will hear arguments in an epic balance of powers battle between the other two branches, one that’s been waiting to happen since George Washington’s time. During the hour, the justices may or may not signal clearly whether they’re going to permit the continued expansive use of the president’s recess appointment authority — or seriously limit its use for the first time.

That second outcome would give the Senate enormously more influence over the leadership of the departments and agencies and the tenor of the federal courts. But if the court rules that way, it will be almost impossible to notice any difference in the power dynamic before the beginning of next year — if then.

It may sound a bit paradoxical, but it’s the “nuclear option” that would guarantee such a delayed reaction.

And during that delay, a new measure of importance would get attached to the midterm elections.

Here’s why. No matter what the court says about recess appointments in a decision expected in June, for the following six months Senate Democrats will still be able to exercise their newly engineered ability to advance all of President Barack Obama’s nominees (unless there’s one for the Supreme Court) without finding 60 votes to overcome Republican opposition.

And if his party holds on to Senate control in November, the same would hold true during Obama’s final two years in office. Even if they are still permitted, he would nonetheless probably have no incentive at all to make recess appointments — which in practice have been used by presidents only to fill vacancies with people they expected the Senate wouldn’t cotton to. If the court reins in or maybe even does away with this long-standing practice, Obama would have no reason to be upset, because his party-mates would still have the post-nuclear power to confirm whomever he wants.

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