Speaking in a March telephone interview with Appellate Daily, Senator Mike Lee emphasized a point related to his recent no votes. The key word is recess.
A member of the Senate Judiciary Committee, Senator Lee has been voting no on judicial nominees to protest President Obama's January 4th recess appointments of Richard Cordray, as director of the Consumer Financial Protection Bureau, as well as three members of the National Labor Relations Board.
Lee indicated that some news reports about his no votes miss the mark, implying that he objects to recess appointments as a general category. No, says Lee.
The Constitution provides: "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."
Statements posted to Lee's website explain that "at the time of the appointments, the Senate was not in recess but rather was meeting approximately every 72 hours in pro-forma sessions." Also, "the Constitution specifically requires that each chamber of Congress must consent to the adjournment of the other chamber if the adjournment is to last longer than three days. At the time of the appointments, the House had not consented to the adjournment of the Senate for a period longer than three days."
In short, Lee's objection is that the Senate was not in recess, so the president could not make recess appointments.
Lee acknowledges that the Office of Legal Counsel takes a contrary view, namely that pro-forma sessions, where no business is conducted, do not break up a recess. According to the OLC, the Senate was in recess from January 3-23, at least, and pro-forma sessions did not change that. The Senate's actual availability to advise and consent defines a recess, not the consent-to-adjourn requirement, in the OLC's analysis.
Both sides see a constitutional encroachment: Lee, to the Senate's constitutional advise-and-consent role, through appointments that evade review, and the OLC, to the president's constitutional recess appointment power, through pro-forma sessions that prevent such appointments.
Lee also acknowledges that his Senate colleagues have not joined his method of protest (though others do agree with his underlying objection). Court action may be another path to resolving the controversy, but Lee believes it is not quick enough.
On another note, Lee commented on Justices Scalia and Breyer speaking in a Senate Judiciary Committee hearing last fall. A former clerk to Justice Alito, Lee had the opportunity to ask the justices questions, which was "surreal" and an honor, he recalled.