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. I’m not new, just reserve my pithy comments. The crazies change around. So I comment now and then.

      Hello to Paul. You’re reserved on this one.

  1. I have to admit, Prof. Turley’s blog was not a place I expected to see ZOMG SCALIA WAS MURDERED!!1! conspiracy theories. How does a fairly dry constitutional law blog attract people so far on the left side of the bell-curve? Is the Free Republic site down today?

    Scalia was an old, obese smoker, fond of rich food and drink. Myocardial infarction was only paying 2:3 for him in the dead pool. His family could request an autopsy if they thought anything was amiss, but they’re not. That’s because the cause of his death is pretty obvious, even to a “non-homicide trained” U.S. Marshal. Or maybe…Scalia’s family is IN ON THE CONSPIRACY!!!

    Some people can only feel alive if they picture themselves as being in the middle of The Most Important Time In History, when the country is being destroyed by Those Others and only I and I alone see and understand the Real Truth that all you sheep can’t comprehend! See also: Jade Helm, WTC pre-cut beams, and Benghazi.

    Jesus get over yourselves.

    1. I would not want a loved one autopsied ever. It’s a desecration of the body of someone you love. No way! This family is fortunate, anyone else would have been sent to the coroner. I never want to be autopsied. If my husband killed me, he has thousands of reasons to do so. Can I put No Autopsy in my will?

      1. Sandi Hemming – You can put whatever you want in your will. You can ask to be changed into a rainbow colored unicorn. However, once you are dead the state and the heir(s) have any control over the body. They do not have to follow your wishes.

        1. Recovering from hip surgery, glad to hear from you. I think the Scalia family was very smart. No one should be autopsied unnecessarily. Watching what happens to the court is going to be interesting. For the left I ask, do you remember Ted Kennedy. I don’t remember how long it lasted, but he Borked Bork. Borked has become a part of our language. I’m surprised no one has mentioned it, maybe someone has, but it ended in Bork being withdrawn. Justice Thomas went through hell. The left have done this to themselves, though they will cry foul at whatever Republicans do.

            1. Paul, thank you for your note. Just listening to Obama speaking yesterday in Rancho Mirage, CA. A tape of yesterday’s The Five. I think he does this on purpose it happens so often. I’ve started reading a lot of material on the Constitution. Just found in 1960 Democrats passed a resolution that there could be no recess appointments. This was to stop Eisenhower filing a vacancy before Kennedy was sworn in. If intentions had not been given by Ginsberg about decisions to be made when there another lefty changed the balance of the Court. An interview she gave to,Katie Couric. I thought that her hopes for moving the Court to the left were scary. I urge everyone to listen to that interview. I’m sure it’s available on the Net. I’m not a big techy or I would find it and give you an address, as so many of you do, but I haven’t learned that. OMG, Obama is talking about climate change! Need to find the remote!

  2. I think that Prof Turley is wrong in casting blame on the part of Obama since he acted only after the GOP simply refused to consider ANY nomination for many of the recess appointments. The NLRB is a case in point where the GOP refused to confirm ANY nominee to keep the board from functioning AT ALL! The FACT that the GOP has stated its policy is to not consider ANY nominee for the SCOTUS is another false equivalence of blame on both parties. It is ONLY the GOP which has shown its unwillingness to do its duty and to stymie legitimate governmental operations. I hope Obama will respond to this wanton obstruction and basic sabotage in the manner that will defeat such antics. Both sides are NOT at fault. It is like saying that one who tells the truth and one who lies are both equal and deserve equal consideration.

    If the GOP wins the Presidency, and the Dems win back the Senate, Obama should nominate his choice and let the new Democratic Senate confirm. Or will that be too partisan for the good Prof too? Will he then denounce the Dems for doing their rightful job?

  3. Al Gore is a buffoon. He would have screwed up this country horribly, just like he has screwed up his life. He is a fat, stupid, pompous idiot. He and Michael Moore tip the scales a total of 700lbs. They are warming the earth just by themselves.

  4. Obama “has a phone and a pen”. Isn’t that all he needs [to seat a new justice on SCOTUS] ?
    He doesn’t need Senate concurrence, right?

  5. Ck07 – What gridlock? Didn’t congress just pass the largest budget in history along with Obama’s bills being funded?

    I think you’ll be surprised when more pissed off voters go to the polls. Voters are sick of congress folding to Obama’s demands. You must be listening to the left wing media, trying to convince you there’s gridlock. Trump is #1 in polls and primaries because of congress keeps passing all of Obama’s and democrats bills.

    I’m getting ready to leave to go vote. . . For Trump and I’m taking my gun and bible with me. lol
    ps: I’m educated too!

  6. If a grade school in America had the “recess” hours, days, months, that our Congress has, then all children would be left behind. When some vague holiday is near, like a week away, off they go back to Kentucky to play golf. Congress is the laziest group of workers on Planet Earth.

  7. Th constitution reads: “the President shall…” To me that is close to must. Or was the “original” meaning of “shall” the phrase “only with consent of the Senate majority leader”?

  8. PhillyT ~> “We have to move on and let the President appoint the next member of the Supreme Court as the Constitution dictates. Justice Scalia, being the true believer he was, except when he wasn’t, would not want it any other way.”

    The president doesn’t “appoint”, he nominates.

    If the Republican majority decides not to act, that will earn them points with the American people because their tired of a Republican congress passing Obama’s agenda. It’s like Pelosi & Reed are still here.

    This is the exact reason for the anger of Americans and why Trump is even a possibility. If the congress delays the SCOTUS nomination until the next president is elected, Trumps poll numbers might sink. There’s hope that the Republicans “get it” but we shall see.

    I resent Obama making any reference to “his Constitutional duty”, when he’s spent his entire two terms finding ways around the Constitution. He’s not fit to even say it.

    1. Pause…so according to you congressional approval is less than 20% because they’ve been passing too much? As opposed to voters being tired of them doing absolutely nothing and the partisan gridlock? I think you’re listening to only the most extreme of right wing tea party voters who call in to shows like chris plant and Rush Limbaugh. You’ll find yourself terribly disappointed again in the general elections when more people come out to vote.

  9. “I got this thing and it’s f’g golden. And I’m not going to give it up for f’g nothing. If I don’t get what I want, or if I’m not satisfied, sh*t, I’ll just go up there and take the seat for myself.” Rod Blagoyavich, Nov. 2008; Barack Obama, Feb. 2016.

  10. … filling of the vacancy left on the Court by the HIGHLY SUSPICIOUS DEATH of Associate Justice Antonin Scalia.

    “Let’s jump right in with quotes from the Washington Post, 2/15, “Conspiracy theories swirl around the death of Antonin Scalia”. The Post published extraordinary statements from the Facebook page of “William O. Ritchie, former head of criminal investigations for D.C. police”:

    “As a former homicide commander, I am stunned that no autopsy was ordered for Justice Scalia.”
    “You have a Supreme Court Justice who died, not in attendance of a physician. You have a non-homicide trained US Marshal tell the justice of peace that no foul play was observed. You have a justice of the peace pronounce death while not being on the scene and without any medical training opining that the justice died of a heart attack. What medical proof exists of a myocardial Infarction? Why not a cerebral hemorrhage?”
    “How can the Marshal say, without a thorough post mortem, that he was not injected with an illegal substance that would simulate a heart attack…”

    “Did the US Marshal check for petechial hemorrhage in his eyes or under his lips that would have suggested suffocation? Did the US Marshal smell his breath for any unusual odor that might suggest poisoning? My gut tells me there is something fishy going on in Texas.”

    …….As for a murder motive, try: upsetting the voting balance of the US Supreme Court. Try: a push to appoint a new Justice now, thus ensuring the appointee’s political persuasion, regardless of the outcome of the 2016 Presidential election. Try: attempting to shift the Court’s voting balance in upcoming cases on abortion, immigration, and Obamacare.

    Dismiss the comfortable notion that “this couldn’t happen.” JFK couldn’t have been murdered, but he was. High political figures don’t carry special immunity.

    Dismiss assurances from incompetents in Texas that Scalia died of natural causes, and dismiss the press repeating these assurances—which add up to: nothing.

    Dismiss calls for “propriety in a time of grief.”

    Dismiss whatever opinions, pro and con, circulate now about Scalia, his points of view, his decisions, his character, his life. They’re irrelevant to the facts of his death. Those facts are as clear as mud.

    Dismiss the typical accusations of “conspiracy theory.” It’s no theory when key facts are unknown and incompetents supplied the current “information.”

    To read in it’s entirety go to:
    https://jonrappoport.wordpress.com/2016/02/15/was-justice-scalia-murdered-forget-conspiracy-theory-this-is-real/

  11. On the current court need of an additional Justice, Obama might consider meeting with the entire committee. If at all possible looking for someone fairly moderate, but a believer of the Constitution might be found.

  12. I don’t think it was ever determined how many New York residents felt entitled to also vote in Florida in the 2000 election.
    I don’t think that issue was ever brought before a court.
    The demands for fairness, transparency, etc. by Gore supporters only went so far….an actual audit of eligible v. ineligible voters might carry the quest for transparency and fairness WAY too far.

    1. As I said in my previous comment, Florida’s entire state had multiple recounts. Newspapers, tabloids, TV shows, colleges, and I think it’s over 400 now that Bush has been announced the winner. Did anybody watch the fiasco of recounting the votes? Gore may have been better off if he had asked the entire state recount, but would not have won. Hanging onto Gore should have won Florida is ridiculous!

  13. Philly T. In your mind, maybe googling “Gore won Florida” confirms your belief that “multiple, non-partisan” sources called the election for Gore.
    Google “Bush won Florida” for the same “non-partisan” sources that “prove” you wrong.
    Or you could look at the media consortium that did their own recount….that’s probably the closest thing we had to a serious, non-partisan investigation into the Florida election results.
    Googling “Gore won Florida” as “evidence” or “proof” doesn’t stack up well against a systematic recount by a cross section of the media.

  14. I read some baggage up there in the article about Obama being well within his rights to…
    Look. The President has an obligation and a duty to nominate a person to the open seat on the Supreme Court. Make up your mind and do it one week after Scalia is buried. Nuff said. Jeso.
    If the Repubs want to lose the elections over their squabble then let em.

  15. Tom Nash,
    I figure most of the posters on this board know how to use the google. I know of a couple that refuse to do so, but if you google “gore won florida” you will see multiple sources that confirm if the whole state had been recounted Gore would have won. See for yourself.

  16. Gore never requested a statewide manual recount…….he requested a manual recount in the four counties. The mandatory statewide machine recount had already been completed.
    Philly T., you stated that “multiple sources, non-partisan, mostly, reported that had they recounted the whole state, that Gore would have should have won”.
    It’s interesting that you failed to name these ” multiple, nonpartisan sources”. Also interesting that you ignored the findings of the media groups which did their own recounts, confirming that Bush maintained the tiny lead in their recounts.
    To a large degree, that seems to explain your desire to talk about Iraq and Afghanistan, rather than support your one sentence statement about unnamed “nonpartisan sources”.

  17. Tnash …the circle in the sky keeps on turning. 16 stat 44 1869. Now its 2016….under president 44 and on the julian day 44. Year 16. He croaks. The original textualust…..leave it to the ppl justice croaks. To me that is more than a coincidence. Especially if he had health issues, and went despite his doctors and son canceling. He knew. And that was his final order. The “bench” is only who the people say. And nine….per nino is not per se a constitutional amount. We the ppl say amounts.

  18. Well there’s no point in beating a dead horse. Or the thousands of Americans who died on 9/11. Or the thousands of Americans who died in Iraq and Afghanistan. Or the hundreds of thousands of dead Iraqis and Afghanis. But multiple sources, non-partisan mostly, reported that had they recounted the whole state, and not just the four counties Gore wanted, that Gore would have, should have won. But the Republicans had a majority on the court for a decision, by the way, that Sandra Day O’Connor said was a mistake. But never mind. What’s a ruined economy, a few hundred thousand lives lost and a massive debt incurred through tax cuts and two unfunded wars? I mean, who’s counting, right?

    We have to move on and let the President appoint the next member of the Supreme Court as the Constitution dictates. Justice Scalia, being the true believer he was, except when he wasn’t, would not want it any other way.

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