The Senate recently overhauled its filibuster rules, which had frustrated the Obama administration and prompted its recess appointments. The Senate also confirmed a different slate of nominees to the labor board. But the question of whether the board’s ruling against the company should stand remains alive.
There were three questions before the justices on Monday, and the administration had to prevail on all of them to win. But it ran into significant headwinds on at least two.
The narrowest question was whether the Senate could be said to be in recess when it insisted it was not. Justice Kagan said “it really is the Senate’s job to determine whether they’re in recess.” On this point, she told Mr. Verrilli, “history is entirely on the Senate’s side, not on your side.”
A broader question was whether the vacancy had to have arisen during a recess. Several justices said that was the natural meaning on the phrase “all vacancies that may happen during the recess.”
When Mr. Verrilli countered that the phrase was at least ambiguous, Justice Scalia responded that very few people thought so. “It’s been assumed to be by ambiguous self-interested presidents,” he said.
The third question was whether the appointment had to be made during the recess between formal sessions. Those recesses used to be long. These days, Justice Ginsburg said, “the intersession recess might be momentary.”
Noel J. Francisco, a lawyer for the bottling company, said his client should prevail under all three arguments.
But Justice Ginsburg said that position has far-reaching implications. “Your argument would destroy the recess clause,” she said. “Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”