Role Reversals Emerge in Dispute Over Obama’s Recess Appointments

C. Boyden Gray received his own recess appointment from President George W. Bush in 2006. Stephen Crowley/The New York Times

C. Boyden Gray, the former White House counsel and ambassador, is among the conservative lawyers urging the Supreme Court to severely constrain the Obama administration’s ability to fill executive branch vacancies during a Senate recess. Mr. Gray is exceptionally well versed in the subject, having received his own recess appointment in 2006.

“I have been on both sides of this issue,” said Mr. Gray, who was named ambassador to the European Union without Senate confirmation by President George W. Bush on Jan. 17 of that year. “The one for myself was a holiday recess. It was a real recess, and I don’t think there was any doubt about it.”

What constitutes a real recess is just one of the issues as the fight over Senate confirmations moves to the Supreme Court. On Monday, the court will hear arguments in the administration’s challenge of an appeals court ruling that would tremendously restrict a president’s power to, as the Constitution allows, “fill up all vacancies that may happen during the recess of the Senate.”

Since George Washington’s time, presidents have relied on the clause to fill vacancies, with some exploiting it as a founding loophole to circumvent the Senate’s role of advice and consent.

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