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Court could limit president's recess appointments

By MARK SHERMAN Associated Press

WASHINGTON - Just back from their own long break, Supreme Court justices set out Monday to resolve a politically charged fight over when the Senate's absence gives the president the power to make temporary appointments to high-level positions without senators' approval.

The legal battle is the outgrowth of partisan rancor over presidential appointees that has characterized Washington over the past 20 years, and especially since President Barack Obama took office in 2009.

Recess appointments have divided Democrats and Republicans, with views changing depending on which party holds the White House. But during more than 90 minutes of arguments Monday, the Obama administration was hard pressed to find support for its stand in favor of recess appointments from justices named by Republicans and Democrats alike - including Obama.

Justice Elena Kagan, an Obama nominee, seized on the political dispute to make the point to Solicitor General Donald Verrilli Jr. that "congressional intransigence" to Obama nominees may not be enough to win the court fight.

Kagan, Verrilli's predecessor as Obama's top Supreme Court lawyer, suggested that it "is the Senate's role to determine whether they're in recess."

The court is writing on a blank slate as it considers for the first time the Constitution's recess appointments clause. That clause allows the president to fill vacancies temporarily, but only when the Senate is in recess.

The constitutional issue may be new to the court, but two justices lived through the political tussle over nominations. Both Chief Justice John Roberts and Kagan were nominated to the federal appeals court in Washington, but saw their nominations blocked in the Senate. Roberts eventually won confirmation, but Kagan did not.

SEmD AP

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