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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
FEMALE_1: Welcome to civil discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your host, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia.
N. Rodgers: You're already laughing because you know what I'm going to say. Let's talk a recess.
J. Aughenbaugh: Yes.
N. Rodgers: It's going to be one of the few that I can pronounce, Aughie. This series is going to leave me in the land of unpronounceable stuff.
J. Aughenbaugh: Listeners, this episode begins one of our mini series, which we spin out like a hyper productive spider.
N. Rodgers: I don't know why we do that. This is part of the regular episodes. But we tend to bunch our regular episodes together into themes, partly because it's fun for us to research themes, but also partly because it helps the listener understand why we're talking about something. Put it in a theme. This theme series, which I'm excited by, not kind of, I am very excited about is Aughie's going to tell us about clauses in the Constitution that get mentioned as clauses. There's one that he loves and I don't, that regularly gets talked about, which is the Commerce Clause. We're not going to talk about that, but we're going to talk about some of the lesser commented on clauses. This first one is the Recess Clause, which is where I was yelling recess.
J. Aughenbaugh: Where Nia was channeling her inner schoolchild.
N. Rodgers: That's right, my inner first grader.
J. Aughenbaugh: Yeah, where you would endure four hours of teachers acting like the teacher in the Peanuts cartoon, Blah, blah, blah, blah, and then all of a sudden there'd be like, recess, and you're like, all of a sudden, you would have energy for the first time since yesterday afternoon.
N. Rodgers: Since breakfast.
J. Aughenbaugh: The Recess Appointment Clause is in Article 2, Section 2, Clause 3 of the US Constitution.
N. Rodgers: Can I read it?
J. Aughenbaugh: Sure, please do.
N. Rodgers: The president shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commissions which shall expire at the end of their next session. I assume the end of their next session, meaning the Senate's next session, is that correct?
J. Aughenbaugh: Yes.
N. Rodgers: By the way, I love the way the Constitution capitalizes certain words. Anybody who thinks that Donald Trump is the person who started doing that, just randomly capitalizing stuff needs to read the Constitution. Because power, vacancies, recess and commissions are all capitalized in that sentence.
J. Aughenbaugh: By the way, listeners, English teachers absolutely hate the sense constructions of most senses in the US Constitution because they're all written in passive voice. It just drives you nuts. I can just picture my nuns who taught me English grammar just yelling at the framers. Let's reword this, so you use active voice.
N. Rodgers: Shall have the power to fill up all vacancies that may happen during the recess of the Senate by granting commissions. It's sub clause-y, I should say. It's a clause, but it is sub clause-y.
J. Aughenbaugh: Yeah, you have independent clauses, you have main clauses.
N. Rodgers: Yeah, you have a bunch of lawyers writing this thing.
J. Aughenbaugh: Yeah, secondary clauses, and you're just like, we need footnotes just to go ahead and diagram the sense.
N. Rodgers: But why is it a big deal that the president should just wait for Senate to leave town?
J. Aughenbaugh: Hold on. First, let's get to the original purpose. The original purpose was that the framers understood that just because Congress might not be in session, the people still might expect, what to be working? The government. This in many ways, was very commonsensical.
N. Rodgers: Right, because side note about the workings of the government, for many appointments, the Senate must advise and consent. They have to have a confirmation is what that's called modernly. I'm President Rogers, and I'm going to appoint Aughie to the Supreme Court, Aughie has to go sit in the Senate chambers and have them ask him questions and grill him and whatever, in order for them to give advice and consent. They have to say, sure, we like that guy, stick him on the court or are you kidding? We'd rather set fire to this building than have him be on the court or whatever. That's the job of the Senate. But the Senate goes home sometimes. The Senate goes home. Congress goes home mostly to get reelected. That's why they're going home is to talk to their constituents and hang out with their peeps so that they can be reelected the next time they come up for election. In the meantime, there are things that still have to get done.
J. Aughenbaugh: That's right. For these important positions, whether it be a federal judge or the head of a cabinet level department, we probably don't want those positions to remain vacant for too long.
N. Rodgers: Yeah, we don't want to go without a Secretary of Defense or Secretary of State or a Supreme Court judge.
J. Aughenbaugh: Justice. That's right. Because we want those institutions to continue to do their job, even when the Senate is going back doing that representation thing, that they're supposed to do.
N. Rodgers: That they're supposed to do. They're supposed to care about you.
J. Aughenbaugh: Yes. Now, we have a couple relevant questions here. We've talked about why this is an important clause, but some complications have arisen. Some questions arose in the history of the United States.
N. Rodgers: My question is, is there any position where there cannot be a recess appointment?
J. Aughenbaugh: For inferior positions, it becomes irrelevant because Congress can dictate the selection of inferior officers. Somebody like when we had special prosecutors, Congress, if they created the position could go ahead and say, the president doesn't have anything to do with picking them. Inferior officers are not covered. This is for principal officers, which has been interpreted as federal judges and heads of cabinet level departments, members of independent regulatory commissions. I want you to remember that point because there is foreshadowing.
N. Rodgers: Because foreshadowing.
J. Aughenbaugh: Yeah, we are foreshadowing because there is a big shock in the United States. There is a Supreme Court case about this. That's one question. Another question, must the vacancy occur when the Senate is in recess?
N. Rodgers: If that job was vacant before the Senate went into recess, can you fill it or does the position have to come open while the senate is off doing the thing? I didn't even think about that, but yeah, that's a complicating factor, isn't it?
J. Aughenbaugh: Then the big complication, who gets to decide when the Senate is in recess? Because remember, this is a presidential power that only can take place when the Senate is in recess. Might the Senate not want to officially go into recess because they don't want to give a particular president the authority to make a recess appointment?
N. Rodgers: They support that by having a roll call each day or by having some minor piece of business each day that means that they are technically in recess.
J. Aughenbaugh: Yeah, what they call a pro forma session, where according to Senate rules, if the Senate convenes into business once every three days, then it's not in recess.
N. Rodgers: They don't have to have everybody there. If they're not voting on something, they could just have a few people there. That's slick, isn't it?
J. Aughenbaugh: Yes.
N. Rodgers: We see your power and raise you a different power.
J. Aughenbaugh: Then there's one more question. There are different types of Senate recess or congressional recess. One is intercession. Congressional sessions are for two years, basically the lifespan of a House member, a tenure of a house member.
N. Rodgers: Tenure, not lifespan. They're not flies, thank goodness.
J. Aughenbaugh: Yeah, they're not some insect that basically goes ahead and dies after they have sex. Sorry. You're dead. I hope you enjoyed your brief tenure, brief lifespan on this Earth. No. You have intersessions, which are between a full congressional session. Then you have intra sessions. This is where members of Congress do what you described previously, Nia.
N. Rodgers: They go home for holidays.
J. Aughenbaugh: Campaign events. They go home for summer representation.
N. Rodgers: This is the winter break that they take starting in mid December and they don't come back until mid January would be considered this thing.
J. Aughenbaugh: An intra session. We got a number of important questions here.
N. Rodgers: Which of course, the founders don't respond to in the Constitution, I would bet. I bet that it's been president that's made those decisions, right? Has it been president that has figured that out?
J. Aughenbaugh: Yeah. Let's be very clear. Early presidents used recess appointments, and it was not controversial, in part because as we've discussed in previous podcast episodes, Congress, well into the 18 teens and 1820s had very little business. They frequently took long duration intra session recesses.
N. Rodgers: Go home and plant their crops, go home and reap their crops.
J. Aughenbaugh: Run their businesses. Remember, travel was difficult to the Capital.
N. Rodgers: It was in a swamp in the middle of nowhere.
J. Aughenbaugh: Yes. If you were representing, for instance, the fine state of Tennessee or Kentucky, days, if not, weeks.
N. Rodgers: If you're doing a family with a carriage and a whole.
J. Aughenbaugh: I'm always reminded that even when Lincoln got elected president, he took a train from Springfield, Illinois, to Washington, DC, and it took over a week. This is the new president of the United States in 1861 and it took nearly a week.
N. Rodgers: We're talking about 50 years before that.
J. Aughenbaugh: Yes. When Congress recessed, they weren't scurrying back to DC to do the government's work. A lot of what went on on a daily basis in the federal government was in the executive branch. Members of Congress were very understanding about presidents making recess appointments.
N. Rodgers: There's a little asterisk at the end of that clause that says, until the end of the Senate sessions. The best that you could get would be two years. If they went away the day after they got there, which they would not do, but if they did, the most you could get for your appointment would be two years before they would then bring that person up and have a vote.
J. Aughenbaugh: That's right.
N. Rodgers: It's one of a limiter on that power, especially for something like the Supreme Court where it's a lifetime appointment. It's lifetime appointment once you get past that eventual meeting with the Senate, but you're still going to have to do that.
J. Aughenbaugh: Now, the reason why in part, the recess appointment clause has generated a bunch of recent interest is that in November of 2025, and I know we say this a lot on this podcast of recent vintage, but President Donald Trump wondered out loud on Truth Social that he could use recess appointments to make nominations to cabinet departments. He went ahead and said, this is a quote, "Any Republican senator seeking the coveted leadership position in the United States Senate must agree to recess appointments without which we will not be able to get people confirmed in a timely manner." Now, what Trump was pointing to was the fact that the Senate proudly says it's the most deliberative government body in the world. Even if you US president quickly nominate people to fill cabinet level departments, federal judgeships, might it take the Senate months before they grant a hearing for the nominee and then take a vote? Yes.
N. Rodgers: Absolutely. The reason he said it in November was because he knew they were all getting ready to go away on the winter holiday.
J. Aughenbaugh: That's right.
N. Rodgers: That was the day of November of 2024, Donald Trump is elected to be president of the United States.
J. Aughenbaugh: Yes.
N. Rodgers: He's trying to say, when I hit the ground in Washington on January 19th, whether you-all are in session or not, I need to be putting through a bunch of recess appointments.
J. Aughenbaugh: That's right.
N. Rodgers: Last for then two years.
J. Aughenbaugh: When he said this, also, not surprisingly, a whole bunch of constitutional law scholars were like, wait a minute. One of your favorite expressions, Nia. Hold on, cheetah.
N. Rodgers: That's right. Slow down, cheetah.
J. Aughenbaugh: Slow down, Cheetah. The Supreme Court has said something about this. Let's go ahead and pivot to the Supreme Court case.
N. Rodgers: Wait. Can I ask a question before we pivot?
J. Aughenbaugh: Yes.
N. Rodgers: Prior to Donald Trump, wasn't this power denied to presidents who wanted to appoint Supreme Court justices by the leadership of the Senate by saying we will not entertain?
J. Aughenbaugh: No.
N. Rodgers: Is that a separate thing?
J. Aughenbaugh: That's a separate thing, and to give you an example, Nia, one of the most famous chief Justices in the history of the US Supreme Court, Earl Warren was a recess appointment. Fred Vinson had died when the Senate was in recess. Eisenhower recess appointed Warren, and he started to serve as Chief Justice, and when the Senate went back into session, then Eisenhower resubmitted his name for full Senate approval.
N. Rodgers: But isn't there a potential here for collusion?
J. Aughenbaugh: Sure.
N. Rodgers: Where they say, we're going to go into recess so that you can appoint a guy before the next guy gets into the White House.
J. Aughenbaugh: Yes. Sure. It could happen. Let's get to the Supreme Court case. The name of the case is Canning versus the National Labor Relations Board. It was decided by the Supreme Court in 2014. Barack Obama is president and because the Senate was controlled by the Republican Party, as a number of vacancies occurred on the National Labor Relations Board, the Senate had indicated that it did not matter who Barack Obama appointed as replacements, they would not be confirmed.
N. Rodgers: We will confirm any of his nominees, basically.
J. Aughenbaugh: The National Labor Relations Board, for our listeners who don't know why it's an important independent regulatory commission, basically has the authority to enforce the federal government's labor laws, including whether or not workers for a company can organize into a union, bargain collectively, any disputes about overtime pay, minimum wages, etc, are all regulated by the National Labor Relations Board. Obama made appointments to the National Labor Relations Board when the Senate was adjourned, but was still in pro forma sessions every three days. He made nominations to the National Labor Relations Board. Noah Canning owned a company that had the National Labor Relations Board rule against him in a number of disputes. He challenged the board's rulings on the grounds that the board technically did not have a quorum. Why did they not have a quorum? Because the recess appointments that Obama made violated the Constitution. Why? Because was the Senate in recess?
N. Rodgers: That's the question before the Court is, define recess?
J. Aughenbaugh: That's right.
N. Rodgers: Because the founders cleverly did not do that when they wrote the clause. Sorry. Little sarcastic about the founders occasionally because sometimes they just leave stuff dangling that you're like, really, you didn't think clarifying that would be a good idea?
J. Aughenbaugh: The Supreme Court ruled against President Obama. What the court said was that, if a recess, whether an inter or intra session recess lasts 10 days or longer, a president can make recess appointments, including for vacancies that happened when the Senate was in session. Again, these were vacancies on the National Labor Relations Board that had occurred months, and in one situation a year before while the Senate was in session. President Obama waited until the Senate went into recess and then said, Fine. If you're not going to confirm any of my appointments, I'm going to recess appoint them. How do you like them apples? What the Supreme Court said was, sorry, Mr. President, the Senate recess, where you attempted to recess appoint these individuals to the board was not long enough to count as a recess. By the way, the Supreme Court was basically making this up.
J. Aughenbaugh: This is not in the Constitution, but what Breyer said was, a recess has to be suitably long in duration for the president to be able to access this particular power. Breyer went ahead and said, if you look historically, Senate recesses have been longer than 10 days.
N. Rodgers: Basically, the Senate can cheat by never going into recess?
J. Aughenbaugh: Yes.
N. Rodgers: Which keeps the president from having his appointment power.
J. Aughenbaugh: Recess appointment power. That's right. He said, we're going to look at what historically constitutes a recess for the Senate. Historically, a recess occurs when the Senate recesses for more than 10 days. Unfortunately, President Obama, the United States Senate, led by then, Senate Majority Leader Mitch McConnell was recessing for only three days, and then they would go into a pro forma session and then they would adjourn again. Then three days later, another Republican senator.
N. Rodgers: They were keeping him from using this power.
J. Aughenbaugh: That's right.
N. Rodgers: One of the things they stated at the beginning of the Obama presidency was that they were going to prevent as many positions from being filled as possible.
J. Aughenbaugh: Yes. The Republicans were doing it in response to Democratic Party recalcitrants during the Bush 43 administration.
N. Rodgers: Right. It's a childish game that they all play, and they all should be booted out for playing, by the way. That is my opinion. If you are recalcitrant about the way government works on either side of the aisle, you need to go.
J. Aughenbaugh: This reminds me of disputes that happen at playgrounds, where a parent has to show up and in particular, say to their own kids, you're acting poorly, and I'm going to go ahead and force all of you to go home. Because you're all acting poorly. I remember my mom used to do that, and we would be walking home with my mom, and we'd be like, "Why did you treat us the same as the neighbor kids?" My mom was just like, "Because all of you were acting poorly."
N. Rodgers: Right. There are times when I wish all 535 members could be turned out and we just start over. That's it. Clean slate and nobody gets to stay because none of you know how to act. It's not Republican or Democrat.
J. Aughenbaugh: None of you get to enjoy the birthday cake when you guys have acted like idiots before we open the gifts. Sorry. No birthday cake for you. There was a concurring opinion in this case by Justice Scalia, joined by Roberts, Thomas, and Alito. He thought Breyer's majority opinion was too broad of an interpretation of the clause.
N. Rodgers: Because it made stuff up.
J. Aughenbaugh: Yes
N. Rodgers: Scalia's over there flailing his hands in the air going, you can't just make up a judicial reason. That's not how judicial reasoning works. It has to be grounded in something. It's the same judicial reasoning that gave us trimesters in row. The medical world was like, what are you talking about? I don't like it when the Supremes make stuff up. I don't like it when they make it up on either side.
J. Aughenbaugh: Again, listeners, you're well aware that Nia and I, a lot of times substantively are not big fans of Justice Scalia's jurisprudence. But on this point, I have to agree.
N. Rodgers: He's totally right that it oversteps the judicial role.
J. Aughenbaugh: If we have a problem with the recess appointment clause, including the fact that the framers never defined how long or what constitutes a recess, then yes, we should amend the damn Constitution so we have that clarity. On average in history, the Senate has adjourned for more than 10 days, and that constitutes a recess.
N. Rodgers: Jumping off a cliff, does that mean that it's a consistent thing we should all do is jump off a cliff? I'm with Scalia. Also, Scalia made a point, didn't he, about saying that it actually gives the Senate more weight than it does the President, which Scalia would not have been a fan of because he liked checks and balances. He liked the idea of equal portions of government. Didn't he regularly scold Congress for giving their power to the president?
J. Aughenbaugh: Oh my goodness, yeah.
N. Rodgers: In this instance, he's scolding the Senate saying, no. This is an overreach.
J. Aughenbaugh: This is classic Scalia, either you go into recess or you don't go into recess. If you don't go into recess, you better accept the consequences, including the Senate leadership. The leadership of the Senate needs to accept the consequences that there's going to be 100 really unhappy senators who can't leave ever Washington DC.
N. Rodgers: But if you can't get the buy in from your guys to do that thing, the you shouldn't be doing this thing.
J. Aughenbaugh: That's right.
N. Rodgers: Because not only would Democratic senators have complained about having to stay in DC, but so would Republican senators. Mitch McConnell would not have won that fight if he had had to go to his senators and say, you can't go home. They would have been like, I'm sorry, were you talking to me? Because I'm on my way out. I'm going to visit my family. I'm going to visit my constituents. I'm getting the heck out of DC regardless where I'm going.
J. Aughenbaugh: I got donors I got to suck up to because I'm up for re election in the fall. See how long you remain Senate majority leader when you got to go ahead and tell your Caucus, yeah, you guys are stuck in DC over the holidays.
N. Rodgers: You have a great quote from Scalia. Can I read it?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: Henceforth, the Senate can avoid triggering the president's now vast recess appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. How this new regime will work in practice remains to be seen.
J. Aughenbaugh: It's classic Scalia.
N. Rodgers: It is. It's so sarcastic. It's just dripping with sarcasm.
J. Aughenbaugh: Oh my God, yes. You could cut the sarcasm with a chainsaw.
N. Rodgers: If you really want to get rid of any president's ability to recess a point, you literally amend the Constitution to say, the president can't do that anymore. He has to have advice and consent to the Senate.
J. Aughenbaugh: That's particularly the case because as even Justice Breyer acknowledges, there's another clause of the Constitution that has bearing on the president's recess appointment. What many Americans don't understand is that the president has the authority in Article 2, Section 3 of the Constitution to not only call Congress into session, but adjourn Congress. Now, the calling Congress into session is important in an emergency. See, for instance, FDR when the Japanese bombed Pearl Harbor, Congress had already gone home for the holidays. FDR had to convene Congress so it could declare war against the Japanese nation. But the flip side of that clause is presidents can adjourn Congress. If you're a president who's been getting a lot of pushback from the Senate on your appointees, technically, you could use your adjournment power, adjourn the Congress and while they are in recess, do what, Nia?
N. Rodgers: Appoint whoever the heck you want. You can appoint an entire government if you wanted to.
J. Aughenbaugh: Yeah, that's right. Okay.
N. Rodgers: I'm a little surprised Stephen Miller has not at some point tried to use this because he seems like the guy who would say to President Trump, just adjourn them and then appoint everybody and then bring them back into session. Now, that, by the way, in my opinion, is the nuclear bomb of presidential powers.
J. Aughenbaugh: Oh my goodness, yes.
N. Rodgers: You adjourn Congress for the purpose of recess appointments, they will never again work with you for any reason on anything. It needs to be the last thing that you ever do basically in politics, because it is going to destroy. Not only will it destroy you as a president and your reputation as a president, it will probably destroy your party if your party goes along with it. That would be such a huge like, you really think that adjourning the entire Congress is a good idea?
J. Aughenbaugh: In my research and probably the standard explanation for why the framers added adjournment to that clause comes from the Library of Congress.
J. Aughenbaugh: The founders probably intended the Adjournment's Clause as an element of separation of powers, basically to give the legislative branch a strong incentive to work with the president, right?
N. Rodgers: Oh, so he doesn't just boot them out?
J. Aughenbaugh: Yeah. But again, Nia, FDR didn't consider this, right?
N. Rodgers: He regularly wanted to boot, dug us out of town.
J. Aughenbaugh: Particularly members of his own party, the Southern Democrats, who were extremely skeptical.
N. Rodgers: If he didn't do it.
J. Aughenbaugh: If he didn't do it, and the fact that even the Trump administration has not even made noise about this, right?
N. Rodgers: Right. I don't know if it's because nobody has told Donald Trump it's in the Constitution, in which case don't mention it. I don't know if that's the case, or if even Donald Trump is like, oh, that is a bridge too far. Because that really is the nuclear option.
J. Aughenbaugh: Yeah.
N. Rodgers: You can kick him out of town, but boy, that is not going to go over well.
J. Aughenbaugh: Yeah. I can imagine if Trump in his meetings with John Thune, who is the Senate Majority Leader, and Mike Johnson who is the Speaker of the House. If Stephen Miller or any of his advisors has mentioned this in meetings with Congressional leadership, I imagine Thune and Johnson were like, you know, Mr. President, you do that, and you even lose us. Right?
N. Rodgers: Well, and your effectiveness as the president is over.
J. Aughenbaugh: Yeah.
N. Rodgers: You know how you do this as a parent. Threat is what keeps people in line, not action.
J. Aughenbaugh: Yes.
N. Rodgers: Because once you've done the action, you no longer have the threat. So you want to hold on to the threat as long as you can and use as many carrots as you can to try to get cooperation.
J. Aughenbaugh: And that's the thing about threats. If you make a threat, at some point in time, your kids are going to challenge your willingness to use the threat.
N. Rodgers: Right, and to use crude language, you have to piss or get off that pot.
J. Aughenbaugh: That's right. If you are unwilling to follow through with the threat, then don't make it.
N. Rodgers: Right. Every police officer will tell you you don't pull out your gun unless you are absolutely willing to kill the person at the other end of it.
J. Aughenbaugh: That's right.
N. Rodgers: Because anything short of that is dangerous for everybody.
J. Aughenbaugh: Yes.
N. Rodgers: That's why no president's ever done that, and I would think it would be government shattering. I would think that everybody will then go, whoa, whoa, whoa, whoa, now what does the government mean? Have we moved from democracy to something else at that point?
J. Aughenbaugh: Yeah. But this is just fascinating deal.
N. Rodgers: I ain't even think about the idea of adjourning Congress as a way to get your recess appointments. I didn't even think about that till you put it in your notes, Aughie. You are the most machiavellian human. What it shows to me is that the founders were as Machiavellian as you are, and they tried to put in these internal, oh, yeah, you can do that, but here's what's going to happen afterwards. For instance, the recess appointment itself, that only lasts maximum of two years. The worst case scenario is that you have a person who you would never have accepted in the Senate, sit out that position for two years while the Congress proceeds to make that person miserable in their job, which is what they would do in retaliation, I am sure. I'm sure that hated recess appointments do not have it easy in Washington.
J. Aughenbaugh: No. Because, again, let's say, Nia, I'm the President, and I recess appoint you to be the Secretary of the Treasury. Right?
N. Rodgers: I shall spend it all. Where's my Amazon account?
J. Aughenbaugh: You're right. Okay.
N. Rodgers: I'm kidding.
J. Aughenbaugh: Where is that blank checkbook, right?
N. Rodgers: Exactly.
J. Aughenbaugh: But the people who work for you know that you can only be in that position because you've been recess appointed until the end of the Congressional session. So as career bureaucrats, they do this with presidents. They will certainly do this with a recess appointed Secretary of the Department. We just wait out these idiots, and do nothing.
N. Rodgers: They just not do anything. We slow walk everything that you say.
J. Aughenbaugh: That means you have, effectively, very little leverage over the people that you're supposed to be in charge of.
N. Rodgers: And Congress spends a whole bunch of time sniping you from the edges whenever they get a chance. They're like, oh, yeah, we got your budget. We'll get to that in a few months. That's how that works out, is that it ends up being, we will outwait you and we will diminish your effectiveness.
J. Aughenbaugh: And we will make your professional experience one of the worst that you could ever imagine, right?
N. Rodgers: Which is why I assume presidents don't do it all the time.
J. Aughenbaugh: That's right. They're extremely costly.
N. Rodgers: Because you have to either really want the thing, or you have to believe that when the Senate comes back, they'll confirm.
J. Aughenbaugh: That's right.
N. Rodgers: Like Earl Warren. They had a pretty good idea that they were going to confirm him. Right?
J. Aughenbaugh: Yeah.
N. Rodgers: But you wouldn't want to do somebody more controversial, say Robert Bork on a recess appointment because then you lose credibility as the president, Bork loses credibility as a justice, the Senate gets all stroppy and difficult to deal with even more than they are already.
J. Aughenbaugh: Yeah.
N. Rodgers: Then they go to social media and talk crap about you, because now that's what they would do. This battle would play out.
J. Aughenbaugh: Now you're talking about political capital, and politicians know this intuitively. You only have so much political capital, do you want to go ahead and burn it on a fight that you more than likely are going to lose? No.
N. Rodgers: You may not even want to have. You may not even be that attached to this person.
J. Aughenbaugh: Okay, I want to give you an example of what you just described. When the United States Senate made it clear to President Obama that they were not going to act on Obama's nomination of Merrick Garland to replace Scalia on the Supreme Court, many prominent Democrats said publicly, President Obama should recess appoint Merrick Garland to the Supreme Court, but cooler heads prevailed, because what many of them went ahead and said was, fine, but if you do that, won't future Republican presidents also do that. This comes back to one of the themes that we have talked about on this podcast, partisans need to be aware that what they might want to do now, will be used by their opponents in the future because they won't always be in charge.
N. Rodgers: Also, I don't know if Merrick Garland would have accepted it, because there is, in the particularity of the US Supreme Court, that is nine people, and you don't want to get on that court in any way that is not above board totally accepted by the system. Because if you are, you have to live with that the rest of your career, which nobody wants to do. Nobody wants to fight that fight every single day, which is what you would have to do if you were recess appointed to the Supreme Court as a rammed down their throats kind of measure. Again, going back to the Warren idea of, they knew he was going to be accepted.
J. Aughenbaugh: Yeah. You make a really good point. One of the things that binds the justices on the Supreme Court together is that they've all gone through the same cauldron, the same confirmation experience.
N. Rodgers: That horrible process.
J. Aughenbaugh: Yes. That's why, for instance, I've had students say, I bet a whole bunch of justices were very cold to Brett Kavanaugh after his confirmation experience. Or I bet a whole bunch of justices were cold to Clarence Thomas after his confirmation experience. I'm like, no, I said, by all accounts, the justices warmly embrace and accepted their new colleague. I said, part of it is narrow self interest.
N. Rodgers: Right. There's nine of us and we have to get along.
J. Aughenbaugh: Yeah, and if there's a vacancy, then the court may not be able to process all their cases if there's tie votes. But I said, the other thing is, remember, they've all gone through this really arduous process.
N. Rodgers: That trial by fire.
J. Aughenbaugh: It is a form of hazing. We've all overcome this, and now we have this lifetime tenure position. You're now one of us. We know what you went through. Welcome.
N. Rodgers: That doesn't mean that they like each other personally. I'm sure that there are some folks who don't particularly like other folks on the Supreme Court. You don't have to like each other in that way.
J. Aughenbaugh: But if you've gone through the same experience, there is a level of respect and understanding that the rest of us will never understand.
N. Rodgers: All Marines are brothers, even if they don't like each other.
J. Aughenbaugh: Sure.
N. Rodgers: They're all brothers because they've all been through the Marine boot camp.
J. Aughenbaugh: Oh, my goodness, I have a couple of former high school mates who went into the Marine Corps. Now, I got to tell you, before they went into the Marine Corps, they weren't very close. After they went through Marine Corps boot camp and did a couple of tours with the Marines, they're tight.
N. Rodgers: Those units are built that way. They're built that way by purpose. One could argue the Supremes are built that way by purpose, because the Supremes on a regular basis do things that the rest of us can't stand. We're like, what? That's the worst decision ever. They have only each other. When they disagree among themselves, they still will say, my colleagues gave this the due consideration and the depth of thought. They respect the work, even if they don't like the outcome the other person came to. They respect that that person didn't just wake up one day and go, purple, we should all be purple, or whatever.
J. Aughenbaugh: Think about it this way, Nia. Earlier this year, the Supreme Court issued a decision that said that, President Trump's tariffs were illegal.
N. Rodgers: Yes. And all of them had things to say about it.
J. Aughenbaugh: No, but to your point that, they experienced something that the rest of us don't experience. Two or three of them got explicitly called out by the President of the United States. I think at one point he went ahead and said that they were disloyal to the US Constitution.
N. Rodgers: And slime balls.
J. Aughenbaugh: When you go through that, because let's face it, if you serve on the Supreme Court long enough.
N. Rodgers: Somebody's going to call you a slime ball. One president or another is going be all like, you didn't go my way, you hate the constitution, you hate America, blah, blah, blah, down with you.
J. Aughenbaugh: You all go through with it. And it's the survivor's mentality, you all go through.
N. Rodgers: Build connection.
J. Aughenbaugh: Yes.
N. Rodgers: If the wheel turns, and they're like, it's your turn now, it'll be my turn again in a few years with a new president, and what we have to do is look out for each other.
J. Aughenbaugh: Yes.
N. Rodgers: That's why they are such a tight-lipped group. It's because they know, if you start throwing each other under a bus.
J. Aughenbaugh: It's going to come back around, and the bus is going to run over you.
N. Rodgers: Right. They wait to do all their running over of each other until after they're no longer Supreme Court Justices.
J. Aughenbaugh: Yeah, that's right.
N. Rodgers: And they write their final memoirs. But anyway, it's an interesting clause, and it's an interesting idea that the founders were like, sometimes Congress wanders off, and we should have some way for the president to deal with important things. But we should make sure that the president can't just do that for a lifetime. There has to be an end date on that. It's a clever clause, really, when you think about it.
J. Aughenbaugh: Yeah, and it's not a long clause, even if it is poorly written. I'm sorry, I had to get one last jab in.
N. Rodgers: Aughie's legislation subclause. I do like that you brought up the Adjournment Clause and the adjournment power as a, you could do that, but you could also set yourself on fire, and you don't want to do that either. There are things that you can do that you shouldn't do. When Donald Trump said, I could walk out onto Fifth Street or Seventh Street, whatever the heck it was, and shoot somebody. Technically, could you do that? Well, yeah. But you shouldn't do that, because you're not immune from doing that. That's just a human.
J. Aughenbaugh: So much of government is, just because you have the authority to do something doesn't mean you should use it. As I like to joke with my students, I have the authority, according to VCU, to give you guys a quiz every class session. Doesn't mean I should do it. In fact, nobody thinks I should quiz you every single day. But I have the authority to do it, I just don't choose to use it, right?
N. Rodgers: Right.
J. Aughenbaugh: Anyways, thank you, Nia.
N. Rodgers: Thank you, Aughie. This a good one. Good episode. Looking forward to more.
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