On Recess Appointments and Principle

At Mother Jones, Kevin Drum reveals something rather alarming about himself. The Supreme Court’s apparently siding with the law rather than with executive power is, Drum writes,

bad timing for the conservatives who are pressing this case. After all, it doesn’t really matter anymore, now that Harry Reid has done away with the filibuster for presidential confirmations. Obama no longer needs to make any recess appointments because Democrats can just confirm his nominees in the usual way. That could change after the midterm elections if Republicans take back the Senate, but it probably won’t. And either way, the electoral landscape almost guarantees that Democrats will retain (or regain) control of the Senate in 2016.

In other words, effectively doing away with recess appointments probably won’t hurt Democrats at all over the next few years, but might very well hurt Republicans if they win the White House in 2016. Nice work, conservatives.

As a matter of practical politics, this may be true. Nevertheless, the “nice work, conservatives” line only makes sense if one presumes that all that matters in a system of government is raw political power, and that the role of the citizenry is to try to bend the rules for the short-term favor of their chosen party. I can only speak for myself and for the many conservatives who, like me, have kicked up a fuss over this, but I can assure you that the checks and balances contained within the Constitution really do matter to us. It has been extremely frustrating over the last couple of days to see the headlines focusing solely on the transient political consequences of the change — as if that is all that matters — and, by extension, the discussion focusing on the merits of the Republicans’ decision to block the president’s nominees rather than the legal question at hand.

The Huffington Post ran a reasonably typical headline yesterday that read, “Supremes Set to Bless GOP Obstructionism?” Again, if you see every question of principle through the lens of partisan advantage and you don’t believe in objective legal standards then I suppose you’d come to that conclusion. But you shouldn’t. At a stretch, one can accept the claim of the administration’s lawyer that, things having been a certain way for a long enough time, tradition becomes de facto law. James Madison eventually took a similar position on the National Bank. But what you absolutely can’t do is what the president has done on a wide range of issues, which is to imply that there is a “we can’t wait” provision somewhere in the document that collapses the checks and balances if and when those they are supposed to constrain see fit to object.

Republicans and Democrats alike ignore the Constitution when it suits them. Indeed, that politicians are self-interested and that they will subjugate principle to personal political profit is precisely why we have a codified charter of power. This notwithstanding, there is no reason for unaffiliated writers to look at these questions with such a cynical, will-to-power eye — especially when they write for an outlet that sees itself as continuing the traditions of a woman whose raison d’être was, she said, to ”abide where there is a fight against wrong.”

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