Katyal suggests that if the two evil conspiring Democrats attempted to edge out the rest of the board the president could "remove them for cause." Roberts comes back with (hypothetically) "What if he's perfectly content to have two Democrats?"
Oh dear. And everyone had been playing together so nicely.
Alito presses Katyal on the lack of robust debate among only two people: "They have to split the difference all the time." And Katyal replies, "I am not here suggesting that the two-member board is ideal or equivalent or an optimal thing. Congress set out five. But faced with a vacancy crisis and shutting down the board entirely, I think the board did the prudent thing here by continuing to operate, continuing for these 800 or so days to decide these cases."
Justice Scalia disagrees. "If shutting down is the only way to put pressure on Congress to—I mean, you may have a Congress that is just delighted to have only two Democratic members left on the board and all the cases decided by two Democratic members. What possible incentive does that Congress have to increase the board to the level that it should be? None. If you want to solve the crisis … the only way to solve it is to say: 'Boy, you know, there is—it's Armageddon coming [much laughter]. We are going to not be able to act at all.'"
Scalia has a point. A point he follows up with a query: "Do we have any notion when the board will reduce to one?" Katyal confirms that yet another member, Schaumber, the Republican, leaves this August. Scalia grins: "At which point there will be some pressure on Congress, I guess, right?"
Ginsburg asks about the status of the three dangling nominees. Katyal replies that, "They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed cloture vote in February. And so all three nominations are pending." He adds, "I think that underscores the general contentious nature of the appointment process with respect to this set of issues."
The last twist of the knife comes straight from the chief justice, who asks mildly, "And the recess appointment power doesn't work why?" Katyal admits that the recess appointments process, which allows the president to fill up the board with his temporary appointments while the Senate is out of session, works just fine. It's the president who has been unwilling to pull the trigge r. Arguments end today, as they begin, with Katyal earnestly singing the praise of putting a little more faith in a statute's "subordinating conjunctions." It's a tiny little thing. But given what the rest of Washington is screaming about, the Supreme Court's lyrical version of Washington math isn't a half-bad way to pass a morning.