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”

  1. Sandi Hemming…… are correct in pointing out that the media were invited to do their own Florida recount, and that the recount(s) confirmed that Bush won by an extremely narrow margin.
    I’m not sure how many recounts, or how many months/ years to allow for the recounts, the Gore supporters expected.
    The media added to the mess by announcing that Gore won Florida (“You can take it to the bank” -Dan Rather).
    Then declaring that Bush won. Gore conceded at that point. Then the MSMedia says “too close to call”.
    (The networks initially called the election for Gore while the polls were still
    open in many,parts of the country).
    At some point between the election and the scheduled inauguration date, a decision had to be made. Based on the recounts, it was confirmed that Bush maintained his razor thin lead.
    I’ve heard for over 15 years how Bush or the Supreme Court “stoled” the election. I’ve never heard a realistic alternative to a SC decision to ultimately decide,( sometime before inauguration day), if those challenging the recount results could keep demanding more and more recounts.
    That circus could go on forever.

    1. Considering the fact that the voting process was littered with complaints of minorities who were turned away at the polls perhaps a revote in Fl would have been more appropriate.

      Ash, no problem. It was a point I had to recheck but the column does have some validity.

  2. David even any dems who might hold off ….prob won’ t go with 24. A bill however to save filling this slot could go veto proof…..what do they have to lose? Looking like jerks in an election year? They either dont think they wont get the presidency and. Want it now
    …taking advantage of dead people and us….its not like because he passed away they won’t “win” this years cases. But i’m in the “karma” not conspiracy theory crowd. He died on the 44 julian day. Under the 44th president…..and his pillow. The 16 stat 44 statute in 1869 created nine positions on the court. .
    .what you suggest…..i.e. 24 is too many….given 1869 equals that!…..karma, mupheys law, superstition, conspiracy theory, man behind the curtain……who knows…but its always for the people….and by the ppl. Nine is not a magic number or constitutional law. We should get to decide if there is even a ” vacancy”….. Because the ppl of 1860s fought for a,lot and could have made nine the constitutional formula….but left us that power.

  3. From

    Unpresidented? 24 Supreme Court Nominations Have Happened in the Last 10 Months of a Presidency

    With the passing of Justice Scalia, Mitch McConnell has suggested that President Obama should refrain from appointing a nominee.

    “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,”

    This got me wondering about the historical precedent here. Where in each President’s term did a Supreme Court nomination take place? To find out, I compiled the submission dates to Congress for each Supreme Court nominee and joined it to the next inauguration date. From there, I could see how many weeks there were between that nomination and the inauguration.

    The findings? It turns out that about 18% of nominees happened later in a President’s term than where Obama currently is in his term:

    (Visiting Assistant Professor in the City & Regional Planning program at the Pratt Institute in Brooklyn, NY, where I teach a statistics course. Ph.D. in Computer Science (Natural Language Processing) from NYU and a B.S. in Math and Computer Science from Bucknell University )

  4. Issac, George Bush kept us safe for the eight years after 9/11. That is the most important thing. But now, this Yo-Yo sitting in the Oval Office wants to admit Middle East refugees into this country. I think they should be placed where Obama plans to live after he leaves office. They may rampage over Europe, but not here! Any histrionics will be stopped by Americans! We don’t hide our faces here, nor should they. They may practice their religion at their mosques, but then they must accept our ways. This is not their land. We are free, so are your women. Free them to live in this country as we all are free.

  5. I guess the fact that in 1868 they envisioned up to two slots being empty….at any time, means time really isn’t of the essence. Moreover, its not just about the president and his constitutional role to nominate or the senates role to consent. We the ppl via our representatives have. … A role in saying the size of the court. There is no legit reason ppl back in 1868 can carry on their laws from the grave. If obama can create czars to end run statutory positions….then we the ppl can certainly modify statutory positions.

  6. Thanks for the clarification ck07

    I guess wrt that recess, I would think that if Obama has put up nominations that would any outside observer would consider superior sans political agendas and if Congress acts to refuse to consider any appointment, or shows bad faith, then hell, it’s all politics and reasonable for Obama to threaten or act during that recess.

    As far as his reputation goes, I don’t care, it might be a more important act and better for his reputation to shove Congress’ refusal to act on a good nominee in their face.

  7. Maybe this would be a good time for Congress to increase the number of Justices to 24, to be determined by the next President in January. Then whoever President Obama nominates would not matter so much.

  8. The Florida ballets have even recounted by every news agency in the world, plus other requests. George Bush has won every time. The recount was against the law. The Constitution specifically states that the rules of an election cannot be changed after the election. The Florida Supreme Court was attempting to skirt the Constitution and was severely reprimanded by the Supreme Court. I think there have been hundreds of recounts by various organizations and all have proclaimed George Bush!

    And what damage has been done by Scalia? Or does the comment made above refer to his votes, along with four others. I’m sure Obama will nominate someone very quickly. Again making an announcement before Justice Scalia’s internment is completed. That’s all the news organizations will do is talk about a replacement. They should be talking about Scalia’s service to this nation, and
    about this remarkable man!

  9. Actually isn’t it really up to the people what happens next? Afterall its a mere statute that creates nine positions, yet only requires six of eight associate justices to constitute a quorum. We could ask for an “unpacking” plan on either parties platform…..for the election. Congress could even propose a bill right now that the seat remain empty or be deleted even. And if he vetoed such a bill he would be no different than senate ” veto” of his nomination.

  10. Professor Turley, your comment that “I happen to think Obama is well within his rights to make the nomination,” caught me as odd, as I did not think this was an issue that is in contention, from a legal perspective. There may be those that cite prior timing as some sort of precedent of whether he should or should not act to make a nomination, than in itself seems a false argument to give legitimacy to a majority in the Senate that has no intention of acting. But that the President has this right, and to an extent the responsibility to make the nomination, seems hardly in question.

  11. Congress should quit going on holiday. Mitch called into his office not too long ago while they were off on some holiday break.
    “Mitch here.” he said. “Mitch is not here man!” came the reply on the phone. “No, I’m Mitch!” said Mitch. And it went on for awhile and the guy at he office hung up, signed some more documents on behalf of the Senate Majority Leader and wondered who Mitch was. If you do not believe this then ask Cheech and Chong.

  12. Paul

    That Gore or anybody for that matter could have done a better job than the three stooges is a given. 9/11 would have most likely happened anyway but Gore would have whooped Afghanistan but more than likely not have invaded Iraq. George W Bush was and continues to be the biggest embarrassment and shame for the US in the past hundred years or perhaps longer. There is a difference between one’s opinion while a President is in office doing stuff; it takes a certain time for what was done to be proven how right or how wrong, and what a President did, eight years after the fact(s). The facts are in, have been registered, no one could have done a worse job than W and his two handlers.

    1. issac – Obama has been the worst President in my lifetime, Carter is second, Truman third, Clinton fourth.

  13. Food fights are entertaining and think of the trouble it would save if the court was part of the annual government shutdown. They have powers the Congress controls the budget. Just how much does it take to keep the court in session ….. As one example. I’m sure they will settle it like gentlemen and gentleladies. har de har har har

    So why? are the invoking the Constitution? Anymore it’s proper to say….what’s that?

  14. SCOTUS is another scam hoisted on the American people …….. they cannot even understand what basic human rights are and are not …….. one more new player will make little ( micro ) difference to anyone but the power players.

  15. Al Gore played a key role in the development of the Internet, and I have no doubt that he would NOT have ignored all the warnings coming from Richard Clarke, the FBI, the CIA, the Pentagon and all the other sources Bush ignored because he was either focused on Iraq because they insulted his daddy, or else he was busy clearing brush. No doubt about it brother.

  16. issacbasonkavichi, heart attack “likely”? Could be, but we’ll never know because he was embalmed before a proper autopsy could determine what really most likely happened. Then, there’s the fact that Scalia was found dead with a pillow over his face. Perhaps he used the pillow to commit suicide, like that guy who was found in the river who dragged a stolen anvil tied to one foot?

  17. The ‘cutest’ thing about the Supremes appointment of Bush….they knew it was such bs that they took the trouble to say: no other Supremes should ever try this trick again.

    1. L’Observer – the really cute thing is that most people forget their were two decisions.

      “In a per curiam decision, the Court ruled that there was an Equal Protection Clause violation in using different standards of counting in different counties and ruled that no alternative method could be established within the time limit set by Title 3 of the United States Code (3 U.S.C.), § 5 (“Determination of controversy as to appointment of electors”), which was December 12.[1] The vote regarding the Equal Protection Clause was 7-2, regarding the lack of an alternative method was 5-4.[2] Three concurring justices also asserted that the Florida Supreme Court had violated Article II, § 1, cl. 2 of the Constitution, by misinterpreting Florida election law that had been enacted by the Florida Legislature.”

      From Wikipedia

  18. Bush withdrew two of his appointments: Harriet Miers because that appointment was criticized from both sides of the aisle (rightly I may add), and John Roberts, whose appointment he withdrew as associate justice to resubmit as chief justice, post Rehnquist. Otherwise he got votes on all his candidates, even Alito who turned out to be ever the corporatist everyone suspected.

    And Karen, it appears as well that if you work for a corporation, you can commit fraud, murder, money laundering, toxic poisoning of the environment, or collapsing the entire mortgage market and the worst that will happen is your company pays a fine. Maybe. No one gets fired, no one goes to jail. Behavior at the VA is horrible, but no worse than the private sector.

    And, just so no one gets away with laying out the “Bush won” BS one more time: Al Gore won Florida. No doubt about it. The Supreme Court appointed George Bush in a ruling so convoluted it gave pretzels back aches. Thus leading to 9/11, the collapse of the economy, the total elimination of a budget surplus, and several other things that never would have happened on Gore’s watch.

    1. phillyT – you live a rich fantasy life if you think Al Gore, inventor of the Internet and source of Love Story, would have done a better job than Bush.

  19. The fact that no justice was appointed in the last year of the presidency in 80 years is almost a technicality. Kennedy took the oath February 18 1988 in Reagan’s last term and was nominated on the last day in November. Two of the nominees were not accepted before him in short order, one not accepting for marijuana use while a Harvard Law professor (which was still viewed as unethical at the time) the other for his role in Nixon’s Saturday Night Massacre Watergate coverup. The only other justice appointment not to make it to the Supreme Court in the last 40 years was Harriet Miers who GWB appointed (she withdrew after criticism mostly from conservatives over her never having served as a judge anywhere before),

  20. George Bush was NOT elected, but was APPOINTED By the Supreme Court. Let President Obama send his nominee for Supreme Court Justice to the Senate for a confirmation vote, as is his right and duty as President of the United States, with almost one year left in his term. The Republicans have shown themselves time and again to be petty, small-minded and more concerned about their own politics and personal standing, than the welfare of their (beloved) country.

    1. Susan Spiegel – George Bush was elected by the Electoral College. The Supreme Court only appts its legal clerks.

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