On the latter point, I have a piece up at the Guardian about Scalia’s concurrence. For the reasons cited, the idea that the text of the Constitution “unambiguously” forbids intrasession appointments is unserious. It’s not true on its face, and carries with it the additional problem of requiring the belief than many presidents, attorneys general, and — perhaps most importantly — Senate leaders have advanced a reading of the Constitution that is not merely mistaken but irrational.
So what this comes down to is the question of historical practice, and on this point Breyer simply demolishes Scalia. It’s not just that intrasession appointments have been common since the Andrew Johnson administration. Worse for Scalia’s argument, as Breyer demonstrates, is that prior to the Civil War Senate sessions were comparatively short on the one hand and intrasession recesses for all intents and purposes didn’t exist on the other. What we can infer about what Madison, Monroe, Jackson et al. thought about intrasession recess appointments from the fact that they didn’t make any, in other words, is nothing. That they didn’t make intrasession recess appointments is about as relevant as the fact that they didn’t make statutes available in PDF form. The increasing ubiquity of intrasession recess appointments is based on factors, such as modern party politics and air travel, that the founding generation didn’t anticipate. To try to to figure out how they would have evaluated intrasession recess appointments in a contemporary context is a pointless exercise.
And so I come back to this point — even if Scalia’s originalist arguments were as persuasive as he thinks they are, you can’t apply “originalist” arguments in isolation to one facet of the 21st century political system. The framers may not have anticipated intrasession appointments, but they presumably didn’t foresee modern partisan obstruction or the serial rejection of presidential nominees either. Originalism-for-me-but-not-for-thee can’t work even if we could discern a meaningful “original meaning,” which we generally can’t.