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With the sudden, unexpected passing of Justice Antonin Scalia, the entire political world is in an uproar over the future of the Supreme Court. Democrats, as is to be expected, want president Obama to push through a nominee before he leaves office in January, fearing that a Republican victory in the presidential election will cost them a chance to shift the balance of the Court to the left. Meanwhile, Republicans appear determined to block any nomination this year, hoping that a Republican president in 2017 will be able to fill Scalia’s seat with a similarly-minded Justice. Senate Majority Leader Mitch McConnell has already stated that he does not intend to hold a vote to confirm any Obama nominee.
In an effort to resolve this impasse, some have brought up the possibility of a recess appointment to the Court that would allow the president to sidestep the Senate’s ordinary confirmation process. Could such a loophole actually allow Obama to fill the vacancy with a nominee of his choosing against the will of the Senate?
In cases like this, we have to consult both the Constitution, and judicial precedent. Here’s what the Constitution says in Article II, which lays out the powers of the executive branch:
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.
So any recess appointment will be temporary, only lasting until the end of the Senate’s next session. If the Senate fails to confirm the president’s nominee by then, the seat becomes vacant again.
The most relevant Supreme Court case clarifying this section of the Constitution was National Labor Relations Board v. Noel Canning, decided in 2014. While the case granted some concessions to the executive, most importantly that vacancies don’t actually have to happen during a recess, but merely exist, during one, it largely broadened the Senate’s ability to block recess appointments through congressional procedure.
The Court ruled that a “recess” has to last longer than three days, and that the Senate could prevent such a recess from occurring by convening for a short period of time to address even minimal legislative business.
Where does this leave us? The Senate is scheduled to take several short recesses between now and July. President Obama could make a recess appointment during any of these, provided that Sen. McConnell does not convene pro forma sessions every three days to stop him. However, such a nominee would be extremely short lived, and the White House has already signaled that it does not intend to do this, at least not yet..
However, when the Senate leaves town for August recess, there will be a period of several months that could be ripe for a recess appointment. Many Senators will want to have time to campaign for reelection and McConnell is unlikely to be able to keep the Senate nominally in session for that amount of time. Even if the president doe avail himself of this option, however, the resentment it would create among Republicans would ;likely result in a swift rejection of the nominee as soon as the Senate resumes its duties. Since Republicans control 54 Senate seats, and the nominee will require 60 votes to clear the filibuster, Democrats would have no way to ensure confirmation. At best, the Court could last three months with a temporary ninth member of Obama’s choosing, leaving the permanent appointment for the next president.
In short, although the president could theoretically make a recess appointment to fill Scalia’s seat, it would be an extremely temporary situation that would only result in unifying opposition in the Senate. What’s more likely is for Obama to nominate a moderate, inoffensive judge who he thinks could secure the votes of Republicans as well as Democrats. In that case, it will be up to Mitch McConnell to decide whether or not to hold a vote on the confirmation before the next president is sworn in.