As usual, the New Yorker’s Jeffrey Toobin makes Jeffrey Rosen look moderate by comparison. Without mustering a single word in dispute of the reasoning that the D.C. Circuit provided in its ruling on recess appointments, Toobin condemns it as a “judicial atrocity.”
Toobin asserts that there has never before been a “legal challenge” to the scope of a president’s authority to make recess appointments. Somehow he missed the Eleventh Circuit’s ruling in 2004—highlighted prominently in the D.C. Circuit opinion—in which liberal law professor Laurence Tribe and others challenged one of President Bush’s recess appointments. (There have also been rulings by the Second Circuit and the Ninth Circuit on recess appointments of judges; the D.C. Circuit also cited them.) Nor does he note that problems of standing have often made it difficult to find an appropriate plaintiff to challenge the executive branch’s aggrandizement (or, if you wish, accretion) of recess appointment authority. Folks on the Left used to lament such problems, not exploit them to embrace expansive assertions of executive authority.
Toobin thinks it revealing that the D.C. Circuit didn’t mention Republican obstruction of President Obama’s nominees. But the Eleventh Circuit majority, in rejecting the challenge to President Bush’s recess appointment, likewise didn’t cite Democratic obstruction. That’s because the matter is legally irrelevant to the courts’ analyses.
Toobin also sees the ruling as a “huge gift to the contemporary Republican Party,” even as he observes that the ruling would apply equally against a future Republican president. Toobin is so busy lobbing ad hominems at Chief Judge David Sentelle that he seems not to recognize that his own tendentious treatment of the ruling demonstrates that he is the “partisan hack.”