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Supreme Folly: The Senate Should Consider A Nomination By President Obama And President Obama Should Forego Any Use of a Recess Appointment

Below is my column today in USA Today on the prospect of a recess appointment fight in the filling of the vacancy left on the Court by the passing of Associate Justice Antonin Scalia. The White House could well use any refusal to consider a nominee as a license to use a recess appointment while the Senate could move to stay in session to preempt such a recess appointment. In my view, the Senate should consider any nominee submitted by the President and, for his part, the President should forego any recess appointment if the nomination is not successful. Here is the opinion:

The death of Justice Antonin Scalia has served to highlight the divisions that characterize so much in Washington. First, and foremost, the Supreme Court itself has long been as divided as the country itself. Split 4-4 with a conservative-leaning swing voter — Justice Anthony Kennedy — as a frequent tiebreaker, in Scalia’s absence the court is left in a dead heat in areas ranging from affirmative action to union dues to abortion.

Scalia was a critical part of the 5-4 conservative majority in a litany of major cases. However, it is the division in the Senate that could produce the next constitutional crisis. Faced with a refusal of the Republican senators to move forward with a nominee for the court in the last year of the Obama Administration, President Obama could use the nuclear option: a recess appointment to the Supreme Court.

Under Article II of the U.S. Constitution a president is allowed to temporarily fill vacancies that “may happen during the Recess of the Senate.” I have long been a critic of recess appointments to the judiciary. While far less common than appointments to the Executive Branch, such appointments have occurred historically (including 12 to the Supreme Court).Yet judicial recess appointments undermine the integrity of the courts by using the equivalent of a judicial temp for a position that was meant to be held by a jurist with lifetime tenure.

The framers wanted a president and the Senate to come to an accord on such appointments, including the need to compromise to achieve such goals. Obama, however, made it clear years ago that he was willing to go it alone when Congress failed to give him legislation or confirmations that he demanded. His unilateral actions have already produced a constitutional crisis over the fundamental guarantees of the separation of powers. This includes a unanimous 2014 decision of the Supreme Court that Obama violated the recess appointments clause in his circumvention of the Senate.

For a president who has shown a tendency to “go it alone” when denied action by Congress, a recess appointment may prove an irresistible temptation for Obama. The Republican leadership has already signaled that it has no intention of moving forward with such a nomination, objecting that (in 80 years) no president has moved such a nomination within his final year in office. While there is ample time to vote on a nominee, the president could make an appointment if his nominee is denied or if his nominee is left to languish in the Senate Judiciary Committee.

The Republicans may have unnecessarily tripped the wire by saying that they would not move forward on a nomination as opposed to slow walking and rejecting a nomination. The failure to even consider the nominee could give the president the rationale for a recess appointment. Ironically, the justice who tended to favor executive assertions of power and limit the ability of Congress to challenge such assertions was Antonin Scalia.

The president could claim that his power is in full effect with the current recess of the Senate. He could also claim such authority with the end of the annual session. Generally, the authority to make a recess appointment has been recognized with a recess of greater than three days. The Senate can avoid that trigger by remaining in technical session with little or no business being transacted. That could push the target recess to the end of the session where Obama would make the appointment before the next Congress assembles in January — an appointment made in literally the waning days of his term.

I happen to think Obama is well within his rights to make the nomination. As hockey great Wayne Gretzky said, you miss every shot that you never take. And this is a shot most presidents would take. If blocked, however, Obama should recognize that a new president will enter office in a matter of months (or weeks with an end-of-session appointment) with a national mandate. Such a decision would undermine the integrity of the court with a display of raw muscle by a departing president. It would cement Obama’s troubling legacy as a president who waged an unrelenting campaign against the separation of powers that is the foundation of our constitutional system. The difference between a statesman and a politician is often the exercise of restraint. It is not enough to say that you can do something, but whether you should do something. This is something Obama should not do.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors. He has written and testified before Congress on the role and limits of recess appointments.

75 thoughts on “Supreme Folly: The Senate Should Consider A Nomination By President Obama And President Obama Should Forego Any Use of a Recess Appointment”

  2. Ralph

    Scalia was overweight. He was a big time hunter so we can assume he ate a substantial amount of red meat. At 79, following 30 years of pomposity and tussling with stuff, a heart attack is more than likely.

  3. Look for a Chicago Machine political hack move. Those are Obama’s roots and his default position.

  4. As a former Secretary of the Senate, I can easily attest that the Senate may prevent a “recess appointment” by simply not going into recess for more than 9 days at a time (see: NLRB v. Noel Canning, 2014, a unanimous vote by SCOTUS). This has been done quite a bit by both Democratic and Republican leaders in recent years to avoid the perceived abuse of that executive power. And even if the GOP loses control of the Senate in the election, they can still prevent the Senate from going into a recess through filibuster (if that isn’t removed by then-Majority Leader Chuck Schumer, a distinct possibility). But even then, a recess appointment is temporary. A new President and Senate can obviate this abuse of power by simply confirming a new Justice. But the bottom line is that there is also plenty of bipartisan historical precedent for the Senate not to act on SCOTUS or other judicial nominations during an election year, and McConnell and Grassley should hold firm — initials polling data suggest conservatives care more about this vacancy than do liberals. Even granting a confirmation hearing will add pressure to vote the nominee out of committee, etc. It’s a cudgel Republicans are likely to avoid.

  5. The end result of all this is clear enough: the destruction of our rights in America. That is the agenda. And woe be unto anyone who stands in the way of achieving that ultimate goal of the ruling class.

  6. Oh, no wait, he wouldn’t have been fired if he’d been a union employee in the US. Heck, apparently you can even kill people through deliberate fraud and negligence at the VA and not get fired. You get a raise.

  8. If no President has made an appointment in his last year of office in the last 80 years, does that simply mean that no Supreme Court Justice has retired or passed away during a president’s final year in the WH?

    The Senate should do its job to either affirm or reject the appointment, and President Obama should stop acting like a dictator with a “phone and a pen.” Duke it out, don’t do (yet another) power grab. It’s quite common for a Congress to be divided, politically, or for it to be in opposition to a sitting President. His predecessors usually figured out what to do.

    Whenever I hear about an appointment to the Supreme Court, I always think of The Pelican Brief.

    Politics today are so personal. If you don’t agree with someone on an issue, you’re a “bad person”. Too few people have the intellectual motivation to just talk about their differences. It’s about the issues, not the people who hold the opinions. I admit, I was incensed with voters who put blind faith in the ACA, which was passed without Congress even reading it. This was by design. The monstrosity is over 6 feet tall if you print it out. No one person could possibly read it all, and understand it, in time. Even the architect of the ACA admitted that they depended on the stupidity of the American people to get it to pass. That absurdly obvious political gambit should never have worked, but it did. It affected me personally because I lost my great insurance policy, my premiums double, and my deductible went up 1100%. Obviously, if someone’s actions cost you many thousands of dollars a year, indefinitely, you’re going to be angry. But you still have to fight the urge to get personal. It has to be about the issues, and when we can’t talk to each other anymore about our differences, we just devolve to mudslinging and nothing will ever improve.

  9. So, the death was ruled by Presideo County Judge Cinderella Guevara to be the result of “natural causes,” without even an examination of Scalia’s body. What’s next? After Scalia’s body was swiftly embalmed, a half-ass autopsy by Presideo County Coroner Rumpelstiltskin Montoya? I love fairy tales. Don’t you?

  12. Ash, the White House took it off the table only for the current recess.
    Professor Turley is speaking about the annual recess as well later this year so it is still a potential issue.

  13. I nominate Prof. JT to US Supreme Court! Imagine the uproar on Capitol Hill if O’Bama nominated JT!

    JT! JT! JT!

  14. I agree that he should nominate and the senate decide. However it would be a mistake to make a recess appointment on this big of an issue. I say this as a liberal. Let the republicans dig their own graves in the coming elections if they show their continued desire to act as obstructionists. Scalia, noted legal scholar that he was, did the progressive agenda no favors. Having a 4-4 split is no worse for any progressive issues than it would be if Scalia were there. His presence only means if there is a split there now, the issue would have gone against the progressives any way on issues from Abortion and Affirmative Action, to Campaign Finance and Criminal Justice Reform. If the lower court decision was a liberal decision it will stand for now.

    We’ve had a conservative court for a quarter of a century. The gains of the Civil Rights era were seen under a much different interpretation of the Constitution. The Republicans refusal to vote on or accept even a recently accepted lower court nomination will remind voters of their agenda, costing them Senate seats in addition to the White House which they were already likely to lose, ensuring a progressive court remains as the likes of Thomas, Kennedy and the liberal Breyer and Ginsberg retire. Obama making a recess appointment on this big of an issue would make him and the democrats look equally petty to many undecideds in the November elections.

  17. I think it might be possible to technically extend the session until a new Pres is sworn in.

  18. Not to be a spelling Nazi or anything, but there’s no “e” in this usage of “forgo”.

  19. If Obama didn’t occasionally use his constitutionally guaranteed ability to “go it alone”, the ridiculous and unprecedentedly obstructionist republican legislators would have happily prevented our president from his constitutional right to govern. To the tea partiers, elections have consequences.GET OVER IT. And President Obama was overwhelmingly elected twice. Obviously he currently has THE MANDATE. And the right to appoint justices that reflect his judicial philosophy. W “became” (was not elected) president under extremely dubious circumstances and was allowed by the democrats to nominate justices per his preference.

  20. Some things should be bigger than the war between the parties. A fully functioning Supreme Court is the right of the American people not something to be wielded by one political party over another. Damage has been done with Scalia, damage that can be undone. Perhaps if the floodgates of oligarchical funding or purchasing of our supposedly democratic representatives were closed due to a more intelligent and less clever judge, this country might get back on track. As it is now it is a circus.

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