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since 1979, we think your source for capitol hill, providing balanced, unfiltered coverage of government. taking you to work policy is debated and decided all that the support of american companies. c-span, 45 years and counting, powered by cable. host: in the past, present and current antonin scalia chair and constitutional -- at the ethics and public policy center. remind viewers what the ppc is. ier think tank in d.c. dedicated to applying christian value to public policy. host: how long have you been there? guest: 20 years now. host: two weeks ago in "the national review," there was a column in which you called it " terrible anti-constitutional scheme of recess appointments."

why is it a terrible and anti-constitutional scheme? guest: referring to the idea they talked about that donald trump would try to force the senate to adjourn, perhaps right on inauguration day, proceeding to make blanket recess appointments to top cabinet offices. i think that would be an outrageous upsetting of the constitutional scheme, contemplating that the senate will, especially on high offices. as hamilton explained in the federalist papers, this provision of the constitution that gives the senate authority to advise and consent on nominations is important to making sure that the president makes high-quality pix. absent that check, the president can indulge his own whims, his own favors, and as hamilton put it, might even appoint someone simply because that someone possesses the ply seed to render

him obsequious of the president possible pleasure. it's a fundamental feature to the constitution and yes, to be sure, there is a provision for recess appointments that is as hamilton put it, and auxiliary provision designed to supplement the core provision. this appointment scheme would turn things on its head and there has never been anything like it in american history. host: in constitutional terms, what does advise and consent mean? guest: the process by which the senate decides whether to approve or reject the nominees of the president. a majority vote process through which it goes through a senate hearing, the appropriate committee, and is voted up or down. guest: why were read -- host: why were recess appointments put in in the first place? what's the point? guest: it's quite clear, it was

to address a situation in which the senate was not available to act on a vacancy that had just arisen. it has been interpreted very expansively. i'm fine for present purposes on the present purpose of that expansion. i'm not challenging that when i raise my objections to the president elect's scheme. the problem is that he would again try to force the recess of the senate, something played in the way outside the purpose of the provision in order to bypass the senate's advise and consent provision to install high-level cabinet officers. host: how does one force a recess of the senate? guest: that's a good question. there are two paths that president trump and his advisers have been considering. the first would be to cokes and control the senate into

recessing itself. i would not call that forcing. i think it would be shameful if the senate were to do so. i don't think it will. but the scheme to force would use or misuse a provision of the president to adjourn both houses in the event of a disagreement between the houses on the time of adjournment. this is in article two, section three of the constitution. a provision never used before and not one that i think could be lawfully used in this instance, but the idea would be to have the house collude with the president to force the senate out of session. host: what's the point of giving the president that power in the constitution? guest: sometimes the houses might disagree on whether the other house can adjourn. let me go back a step. the constitution says that if the house is to adjourn for more than three days, it needs to get

the consent of the other house. you could imagine a situation in which one house doesn't consent to the adjournment of the other and you might need a tiebreaker where the president can come in and adjourn them both, the provision says. what we have here is not a situation in which the senate is seeking to adjourn with house consent. on the contrary, it's a situation where the senate would want to stay in session. there is no role for the house to object to the senate staying in session. any disagreement on the part of the house with the senate staying in session is no more constitutional than you are i disagreeing with them. guest: 12 -- host: 26 minutes ago we saw a pro forma session. what is a pro forma session? there was one in the house and they did one for caller: caller: the guest: -- for the senate as well. guest: that's correct.

they have become common for the senate since the ruling 10 years ago on recess appointments. they might well have existed before then, i'm not fully aware of the history, but the idea is to prevent a recess of sufficient length in which the president could make a recess appointment. what the majority said was that a recess of 10 days is presumptively enough to allow a recess appointment. if you have these pro forma session every three days, the recess never rises. host: did they contemplate the idea of senators turning over their advise and consent power to a president by saying we will not be in session, allowing you to do a recess appointment? guest: it's a deeply anti-constitutional idea. there's nothing in the constitution contemplating it. is it within the bounds of the

senate to abdicate its responsibility? sure, i suppose, but i think it would be deeply objectionable. guest: some senators are arguing for this process. bill hagerty was one of them on "abc this week," on sunday. let's play a minute and a half of his interview. [video clip] >> recess appointments, trump had six set -- suggested it, john thune agreed to it. this idea that if he couldn't get confirmation on these, he could bypass the senate and do it with recess appointments. is that still on the table, still something that trump is considering? >> it is on the table and it should be on the table. it's a constitutionally available tool. we want to see the democrats cooperate with us. but with the resistance as heavy as it's been, i've been through the confirmation promise s, i

didn't get through the process until july. we need to see things move quicker. the american public has spoken in that regard. president trump is ready and we need a team for him that gives him every tool. >> recess appointments have been used before, barack obama did that with the national labor relations board, but as i understand it never for positions as important as, say, cabinet secretaries of the largest cabinet agencies. let me ask you, finally, if democrats are obstructing, would he try to do that if he didn't have the republican votes to get someone confirmed? that's the issue. if he didn't have the republican votes, would he try to bypass the senate to appoint a major cabinet secretary in the recess? >> again, i haven't spoken about specific plans with him. he will wants to see the

appointments made quickly. i think everything should be on the table. my colleagues understand that and know that they need to step up and move expeditiously to get these members confirmed. host: that was bill hagerty on the sunday shows this week. he called it a constitutionally available tool. guest: i will charitably construe his comments is not embracing the scheme at the outset. you can't have everything on the table when you knock everything else off the table and just have this. he's interested in making sure that nominations get confirmed promptly. perhaps on the road there might be occasion for a recess. i want to emphasize, though, there are tremendous advantages that the president-elect has that most per previous ones never had. they make the comparisons to, say ronald reagan, completely inapt.

for starters, he has a large majority in the senate. he has the filibuster having been abolished for executive nominees. you can't have a single senator put a hold through the cloture process to tie things up. there was the adoption of a two hour rule with respect to post cloture. not on cabinet officers, but others, to get those confirmed easily. the federal vacancies were mapped in 1998 that reagan didn't have, enabling him to put acting officers and place in a broad range of positions throughout the federal government. there are a host of reasons why he doesn't face some sort of crisis and should be able to work things through the process to get competent nominees confirmed quickly. hearings could start as early as january 3, if i may. formal nominations can't be submitted until the 20th, but

officials cannot -- can be confirmed and appointed on that date. trump has -- had three done so in 2017 and there's no reason he can't have at least that many, if not more. host: are you saying that the bar is lower for achieving the advice and consent for cabinet officials? guest: it's a lot lower with the abolition of the filibuster. that's a huge change. the democrats have virtually no tools to obstruct. in the past the minority would have had a huge ability, a huge difference, absolutely. host: ed whelan, with us at the top of the hour, democrats are (202) 748-8000, republicans are (202) 748-8001, independents are at (202) 748-8002.

a good person to ask your judicial question, questions about recess appointments, ed whelan can answer it all for you. joseph, new jersey, republican line. caller: i had a question for this guest. i'm listening to him and neither of you mentioned that president obama did it 32 times. i don't want to hear that things were different with reagan. obama did it 32 times. it's just another thing, you guys are in your bubble in d.c. against trump. trump hasn't made it once yet and he likes to talk. hasn't done it once. likes to talk. discussing it. trump does it and it's unconstitutional. obama did it and it's ok. you guys didn't mention that. host: ed whelan guest:?

respectfully, joseph misses the point. i'm fine with recess appointments being made. the question is whether you make them at the outset of the presidency blanket. barack obama did not do that. there is simply no comparison between what president elect trump is said to be considering and what barack obama did. i'm sort of twisted between -- it's a great idea and he's not even thinking about this crazy idea, so i'm not sure how to respond to that. host: what did barack obama do? guest: he made recess appointments during intersection recesses. he had the supreme court struck down unanimously three of his appointments to the national labor relations board. again, recess appointments have been made in the past and it's a perfectly proper tool when the senate is actually in recess.

forcing the senate to recess to make blanket appointments of cabinet officials at the outset of a presidential term is a far cry from that. it's not apples to apples or even apples to oranges, its apples to orangutans. host: what would you be comfortable with? how many recess appointments, if they don't get the votes that they need? if it's not a blanket recess appointment, what would you be ok with? guest: there is no magic number. it is a process. talking about previous presidents, almost all of them have made nominations, try to work through the senate process, and when they got frustrated and obstructed said i had no choice but to do this recess appointment. here we have a majority in the senate. any competent nominees to major positions ought to be confirmed quickly. it is tempting to wonder whether this scheme being talked about

is designed to enable the installment of less competent nominees. for example, we saw the nomination of matt gaetz to the justice department, a nomination has been withdrawn, but a terrible pick in so many ways. not someone who, who should ever be installed by recess appointment. host: anyone else that you would describe as a less than competent nominee or a terrible pick? guest: one great thing about the confirmation process is that the nominees will have the opportunity to prove their competence. yeah, some questions have been raised about different candidates. can't say i'm wild about rfk junior, for example. let them go through the process. if they shine, all the better for them. they will have even more influence in the administration. if they bomb, that will be

telling as well. but to the republicans in the senate, there should be a good dose of deference to the trump picks. host: gaithersburg, maryland, good morning. caller: i don't really have a comment on the prompt, but i wanted to make an overall comment about some observations from my own working experience. i did notice that sort of the framework that i know from, with an accounting background and the federal government, the control framework. it starts with the tone at the top. unfortunately or fortunately, that occurs at the presidential level. it's interesting to kind of see how these polarizing nominations throughout the upcoming second trump presidency can kind of shift and control the tone surrounding the american public. host: ed whelan, any thoughts?

guest: interesting comment. i think that the president does set the tone and a lot follows from that. host: roy, republican beach, florida. caller: how you doing? host: doing well. caller: pertaining to what your guests are speaking about, recess appointments, if it needs to be done it's constitutional, correct? guest: it all depends what it is. no, i don't believe the president has constitutional authority to get the house to force a disagreement with the senate so that he can adjourn both houses. i have explained in writing why i think that's unconstitutional. it's deeply anti-constitutional for the president to try to force a recess of the senate for the purpose of making recess appointments. i will add further that the court was deeply divided in noel

canning, 5-4, on the scope of the presidential recess appointment authority. my objections to the scheme assumed the majority is right in that case. but justice scalia had a powerful dissent that he read from the bench and was joined by three justices still on the court. pardon me if i said this already, in that opinion he said -- a, the recess appointment authority can only be exercised during intercession recesses, recesses at the end of the session before the senate of the next session. this would typically happen sometime in december. b, the recess authority can only be used with respect to vacancies that arise, that happen during the recess. host: not at the outset? guest: not vacancies that preexist the recess. there's a very good chance that if donald trump or to pursue

this scheme, some months down the road you would have a supreme court majority striking it down on several basis, including the possibility that the three new justices, republican appointees, would join with the chief justice, alito and thomas, in adopting these positions that were set forth by scalia. host: you bring up the supreme court, shifting slightly to the supreme court, what is the expectation among folks who watch the court as much as you do? how many picks might he have in a second administration? guest: i would for the over under line at around two. vacancies are often over predicted. it might end up being a mistake here. i would think that there are some justices, i won't be coy,

speaking of justices and alito, who might decide this is a good opportunity to pass their seat along to someone who would entrench their legacy. you have a republican-controlled senate, it would be easy to get high quality nominations confirmed, and he would basically have a conservative majority rejuvenated. they will make up their own minds. we will see. it seems to me that there are strong arguments why they might decide to step down sometime in the next 1, 2, or four years. host: if it were two and he ends up appointing five over two terms to the court, where would that rank in terms of number of supreme court justice appointments by a single president? guest: i believe he would tie dwight eisenhower, who had five. fdr had more than five, i believe. caller: more time, of course.

guest: washington of course a point of them all at the beginning. i'm forgetting someone, it might've been lincoln who appointed five or so. it's, it's a significant number and hardly unprecedented. host: do you think it is a good thing for the judicial branch to have one president appoint a majority of the sitting justices on the court? guest: it all depends on how good the appointments are? i think they've been great so far. host: what is an appellate judge? guest: the federal judicial system is divided into three levels. federal district court with trial courts at the bottom and the federal court of appeals in the middle. so, we have 12 geographically organized federal courts of appeals, as well as a specialized court to hear certain matters. when you hear about the ninth circuit, the d.c. circuit judge,

the fourth circuit, formerly known as the court of appeals, these are the appellate courts. host: how many are there and how many picks to the appellate courts does the president usually get? guest: i believe there are 12 geographically organized courts of appeals, as well as the so-called federal circuit, which handles intellectual property and claims against the government, i believe. host: each one of those has about how many judges? guest: there's a wide variation. the first circuit has maybe five? the next is 29, i believe? it's quite a variation. the mean is in the 10 to 15 range, but don't hold me to that. so, right now there are only five announced vacancies among the 170 or so active judgeships

on the federal court of appeals. there might be some more vacancies arising. far fewer right now than at the outset of his first term in 2000 2017. the main reason for that is that in his first term, republicans controlled the senate for the two years of proceeding that coming into office. they obstructed a lot of obama nominees. of course, we have the opposite situation now where senate democrats control the senate and have been pushing the biden nominees through expeditiously. host: in terms of what is considered the most important pic, obviously, supreme court, is the appellate court the next important -- most important pic, is that fair to say? guest: sure, i think so. from there you might say that some courts seem more important than others, courts where there is an ideological tipping point where the en banc decisions

might change if you had one or two more, say, conservative judges. the d.c. circuit judge has a very lopsided democratic advantage that would be difficult for anyone to alter. it is seen as, by many, particularly important, because a lot of big cases of administrative law and up in that court. i don't know that that is going to happen. host: more calls for you. this is billy in texas. good morning. caller: i just want to say that america is the nation of god. even though donald trump, i wasn't behind him, even though he won, what i'm saying about our nation is we are a nation of god and it's why we are a leader.

anybody coming in here talking crazy to do crazy things, god is real. host: did you have a question about the judicial branch? or recess appointments? caller: well, i would just like to say that i am for the things that would be better for the people. with america being the type of nation we are, some kind of crooked place, we have a lot of people in the nation wanting chances to speak and react. host: appreciate the call from texas, billy. mike, poughkeepsie, new york, republican, good morning. caller: good morning. first time calling. looking online, i saw that you

mentioned clinton and bunt -- clinton and bush, 100 71 recess appointments under bush, 32 under obama. which seems low. during the barack obama breakdown they said the 20 were later appointed by the senate and 12 were withdrawn. i'm wondering -- what's -- what's the difference between those figures? you know, those occurrences and what's being suggested now? they said the obama ones were all appointed or nominated before the recess. so, i don't understand the handwringing going on that i'm hearing. maybe i'm taking at the wrong way. just curious what your take is on that. host: let me repeat -- guest: let me repeat myself, it's more

than handwringing. it's an objection to the inversion of our constitutional system in the senatorial role in major nominations. recess appointments have their place and if donald trump ends up making 200 recess appointments during actual recesses for mid-level, low-level offices like previous presidents have done, fine. what i am objecting to is the idea of forcing the senate into recess in order to make recess appointments. something ham and up -- hamilton would have found abominable, something justice scalia would have found abominable. recess appointments of top cabinet officials are the sorts of folks who ought to be getting senate scrutiny. all of this in a senate with 53 republicans. what a blunder this would be if down the road these were challenged and invalidated, to

have six months of a trump turn blown by this scheme. host: if that were to happen, invalidated, what does that mean for what happens in the agencies for six months? guest: it all depends on what the unlawfully appointed recess officials did. you could have lots of folks with the authority to challenge the actions taken. let's say for example that the attorney general fires a justice department employee. the employee challenges the firing saying -- among other things, you are not lawfully in office. that person would presumably be reagents -- reinstated or awarded damages in the point is, this would just be a huge mess at the outset. it takes simple tackling and blocking to make a lot of progress here. it's easy to go through the ordinary channels. i emphasize again that

presidents prior to 2013 didn't have the benefit of the abolition of the filibuster. huge, huge change. presidents prior to 1998 did not have the advantage over the vacancies reform act of the gay presidents another vehicle to put in place officials to implement their vision. again, there was a change back in 2019 that means that post-cloture debate for some cabinet officials limited to two hours. that makes it very easy to get lots of nominations confirmed. host: all of these efforts on the confirmation side happened to make it easier to get a nominee confirmed. has there ever been an effort to overhaul or get rid of the recess appointments because of these causes for concern? guest: i don't think it's recess

appointment so much that because the concern. admittedly you have a lot of federal government officials subject to advise and consent by the senate. somewhere near 1200. there is a legitimate question about how you go about enabling those positions to be filled. some of the changes that occurred, by design or not, mediate -- made it easier for that to happen. the question on recess appointments is whether the position that justice scalia expressed in his concurrence in the judgment, that it would some -- at some point be adopted, but there hasn't -- host: there hasn't been a proposal to overhaul the constitution to get rid of recess appointments because it hasn't been an issue? and it could potentially be,

this time around? guest: it's because the senate has plenty of tools available to prevent recess appointments. we are talking about pro forma sessions. you don't need a constitutional amendment to limit recess appointments. host: just one senator coming in and calling it into session. independent line, good morning. caller: question for mr. whelan, with the caveat of not wanting to jinx anybody, what are some of the names that trump should consider for possible supreme court openings? guest: well, i don't think i am particularly in good favor with the future white house folks at this point, so i will not name any names. i will say that donald trump appointed 54 courts of appeals

judges in his first term. an excellent group of judges, outstanding on his part. some 30 or so of those appellate appointees are in the age range to be plausible candidates for a supreme court nomination. a good 12 to 15 would be held as outstanding candidates. you can look around different courts of appeals to find the candidates. it would be easy pickings for him to select one of the outstanding individuals he already had the good judgment to a point the court of appeals. host: have you lost favor over this issue? guest: it's fair to say, i have had my reservations about the president-elect. host: do you care to elaborate? guest: only that i would have preferred a different candidate in the primary. that said, i very much want him to succeed. i am trying to do what i can to

help. on judges and on other matters. that includes beating down bad ideas other people are trying to push on him. host: mary grace, florida, democratic line, good morning. caller: thank you for taking my call and thank you for explaining recess appointments and other things. the public does need to be educated. although i am a democrat, i feel you are doing things fairly for all people. i am extremely worried that the supreme court with six republicans and only three democrats, nothing is getting done because of the fact that their ideology on the others, republicans, with women paying a price for it. is there anything in the constitution that can settle this matter so that it can be equal and fair to all people?

i also feel that politicians on both sides are not listening to their constituents. they just want to be in power. i would deeply appreciate what your thoughts are, and thank you for your work. host: to explain a little bit, what do you want to be equal and fair, supreme court membership? caller: yes. it's unfair, the women now, they defeated roe v. wade and now women are dying because they can't get an abortion. there was the case in texas where the woman had a miscarriage and she couldn't have a d&c because the doctors are afraid because of the way the law is written. that's because the supreme court is unequally divided. host: got your point. let me let ed whelan jump in.

guest: i respectfully am in disagreement with i think virtually everything the caller had to say, other than her thanks for my comments. for starters, republicans, conservatives worked for decades through the process to transform the supreme court. i am very grateful that we succeeded in doing so. if there is one lesson in there that bears on the recess appointment matter, it's that there were some very shortsighted decisions made on strategic grounds, ignoring strategy, by senate democrats that were very costly and paved the way for this conservative ascendancy. one, the launching of the phila best -- filibusters back in 2003 against lower court nominees. second, abolition of the filibusters for lower court nominees >> we