President Obama's recent appointments

Steve Sanders stevesan at
Sat Mar 27 23:09:37 PDT 2010

The Constitution does not contemplate the filibuster; it's a rule of the
Senate that has been added and changed over the years.  Presumably the
Framers envisioned that confirmation would simply require a majority vote.
Thus, I guess I don't see any more of a constitutional or separation of
powers issue here than when one senator places a "hold" on a nominee --
pursuant to a different rule of the Senate -- and the president appoints
him/her anyway.  


Steve Sanders
Attorney, Supreme Court and appellate litigation group, Mayer Brown LLP
Adjunct faculty, University of Michigan Law School
Email: stevesan at
Personal home page:

> -----Original Message-----
> From: conlawprof-bounces at 
> [mailto:conlawprof-bounces at] On Behalf Of Gerber, Scott
> Sent: Sunday, March 28, 2010 5:09 AM
> To: conlawprof at
> Subject: President Obama's recent appointments
> 3/28/10
> According to the attached NYTimes story, President O'Bama 
> recently made a number of recess appointments.  Here's the story:
> I'd like to focus on Craig Becker's recess appointment to 
> NLRB.  According to the NYTimes story, the Senate voted last 
> month 52-33 not to end the filibuster over his nomination, 
> yet the president appointed him anyway.  The primary 
> constitutional arguments in the president's favor seem to be 
> (1) the Constitution permits him to make recess appointments 
> and (2) there seems to be majority support in the Senate for 
> confirming Mr. Becker.  The primary constitutional argument 
> against the recess apointment of Mr. Becker is that the 
> Senate--including very recently--refused to end the 
> filibuster over his nomination.
> I'd be grateful for any thoughts the list may have on this 
> issue.  For the record, I have no horse in this race, I'm 
> simply asking a constitutional law question.
> Thanks,
> Scott
> *****************************
> Scott Douglas Gerber
> (on leave during 2009-10 at Brown University's Political 
> Theory Project) Ella & Ernest Fisher Chair in Law and 
> Professor of Law Ohio Northern University Ada, OH 45810
> 419-772-2219
> _______________________________________________
> To post, send message to Conlawprof at To 
> subscribe, unsubscribe, change options, or get password, see 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or wrongly) forward the 
> messages to others.

More information about the Conlawprof mailing list