A recess appointment to the Court?

Update Several sources report that the Senate is in full recess until February 22, and the analysis below relies on that idea. But the Senate Democrats’ website says otherwise, reporting that the body is reconvening for pro forma sessions at three-day intervals.  If so – and that’s what I would have expected – the strategy outlined below does not work.

That raises a different question: if the Senate Democrats are willing to play hardball, can they force a full recess, for example by making quorum calls at the pro forma sessions and – as provided in the Constitution – voting to compel the attendance of absent members? Since the Republicans have more seats to defend, at some point the cost of staying in Washington just to keep the President from doing his Constitutional duty might become intolerably high, not to mention making the Republicans look pretty damned silly.

But in the meantime, treat this as a “never mind.” Sorry!


The death of Antonin Scalia sets up a potential Constitutional crisis. That this should be so is due in part to the life of Antonin Scalia, and notably to the … well, on the principle of de mortuis nil nisi bonum let us just say “extraordinary” … decision in Bush v. Gore, which his conservative and journalistic eulogists have chosen to pass over in decent silence.

That was the moment when the reference by the courts to the Executive and Legislative as the “political branches” of government started to sound like mere sarcasm. Scalia, it is worth noting, was confirmed unanimously, by a Senate with a strong Democratic minority. Such a thing will probably not happen again in our lifetime.

To speak more precisely, it was not Scalia’s death that set up the potential crisis. It was Senate Majority Leader Mitch McConnell’s announcement, before Scalia’s body was cold, that if the President were to exercise his undoubted Constitutional duty to nominate a successor to Scalia, the Senate would refuse to consider that nominee on his or her merits, but would block the nomination so the next President could make the choice.

It was grossly unfair to say, as some Twitterers promptly said, that McConnell had discovered a hidden provision of the Constitution providing that Black presidents only get to serve three-quarters of their terms; no doubt McConnell would have done the same were Senator Obama now running to succeed President Hillary Clinton. It’s all part and parcel of Weimar Republicanism, under which every institutional norm and tradition is relentlessly sacrificed to partisan advantage.

The potential crisis is not simply that an evenly-divided Court, lasting at least a year, will in the meantime leave several highly contentious issues unresolveable, with different precedents on everything from immigration law to environmental regulation the controlling law in different appellate circuits. (The rule is that a tie in the Supreme Court leaves the lower-court ruling undisturbed, as a result of which the law in the Second Circuit may be in direct contradiction to the law in the Fifth Circuit.)

No, that would be bad enough. But the current Presidential election, with at least two possible “third” parties, serving the rival narcissisms of the billionaires Donald Trump and Michael Bloomberg, potentially on the ballot, and the possibility of an Electoral College deadlock leading to a decision by the House of Representatives, is far more likely than the routine contest in 2000 to wind up in front of a Supreme Court. If that Court  consisted of only eight Justices, it might easily be unable to reach a decision. Having George W. Bush elected President by a vote of 5-4 was bad enough; can you imagine Marco Rubio becoming President on a 4-4 tie?

Moreover, there is no assurance that, should a Democrat win in November, the Democrats would also control the Senate, or that McConnell would be less obstructive then than he intends to be now. What if the Senate refuses to confirm any of President Sanders’s cabinet nominees? That would be outrageous, but no more beyond the Senate’s constitutional powers than refusing to consider President Obama’s Supreme Court nominee even before knowing who that nominee might be.

If President Clinton or President Sanders resorted to recess-appointment powers, those appointments might be challenged, with the challenge winding up in a still-deadlocked Supreme Court. (The current Court unanimously slapped down President Obama’s attempt to make recess appointments when the Senate was actually out of session but nominally meeting every three days precisely in order to block recess appointments.)

So, it seems to me, keeping the Court under strength for a year or more, at this juncture, is an outcome to be avoided if at all Constitutionally possible.
And, as it happens, avoiding it is indeed possible.

For reasons not clear to me, the Congress now stands in recess until a week from Monday, without going through the charade of pro forma sessions. That means that the vacancy created by Scalia’s death is one of the “Vacancies that may happen during the Recess of the Senate” which the President may fill on a temporary basis, without confirmation, by granting “Commissions which shall expire at the End of their next Session.” (Art. II, Sec. 2.) I take it that the “end of their next Session” would, in this case, mean the end of the first Session of the next Congress, at the end of 2017.

So the President could announce anytime in the coming week that he has appointed – not merely nominated – a replacement for Justice Scalia. There is ample precedent for such a step: President Eisenhower made no fewer than three recess appointments to the Court, including Chief Justice Warren and Justice Brennan. (All were promptly confirmed for permanent terms.)

Arguably, doing so is not merely his right but his duty. In 1988, Ronald Reagan – of whom Republicans may have some vague memory – urging the confirmation of Anthony Kennedy, identified “restoring the Supreme Court to its full strength” as a “Constitutional obligation” that the President and the Senate were obligated to “fulfill.” And, indeed, the Democratic-controlled Senate went right ahead and confirmed him, in February of an election year.

If there is such a Constitutional obligation, and if (as is now the case) the Senate refuses to do its part, then it seems incumbent on the President to do his. (Note that the Republicans urging Obama to forgo any nomination entirely are urging upon him a dereliction of duty: the Constitution provides that the President “shall nominate” judges, and “shall” is mandatory language.)

It might be argued – I just watched Jonathan Turley argue on Fox News – that a recess appointment, while obviously legal, would be somehow improper. Had McConnell held his peace, I could see the argument that the President owes the Senate the courtesy of at least submitting a nominee before rushing into a recess appointment. But since the President has the duty to nominate someone, it’s hard to understand why he needs to go through a ritual that McConnell has announced in advance would be entirely pointless, especially after last night’s debate (and comments from other Senators) made that intention to obstruct virtually the official view of the Republican Party.

Ordinarily, the obvious candidates for Supreme Court nominations are the judges of the federal appeals courts, and especially of the DC Circuit. (“Obvious” need not mean “best”: arguably the Court might be improved by adding some people whose careers had not centered on appellate jurisprudence, such as Louis Brandeis or Tom Clark or Earl Warren or William Rehnquist: or, for that matter, John Marshall.) But it would be absurd to ask someone to give up a lifetime appointment to a powerful position for the sake of what might prove to be an eighteen-month temporary gig.

Indeed, given the obvious risk of having a temporary justice deciding cases, or appearing to decide them, with one eye to the politics of confirmation, it might be better to make a recess appointment of one person – someone not now holding a Circuit Court seat – while sending forward a regular nomination for another. There should be no difficulty finding a person of distinction happy to sit on the Supreme Court for eighteen months: a law professor, a working lawyer rather than a judge, or someone currently or formerly in elective or appointive office.

In other circumstances, the great risk of making a recess appointment would be to strain the relationship between the President and the Senate. But what is it that the Senate Republicans could obstruct in revenge for this appointment that they’re not obstructing already? As to the public outcry, of course the Republicans and their tame media figures would make one, but who is likely to listen other than people already convinced that the President is a Kenyan Muslim socialist plotting to undermine the Constitution and sell the country to its enemies? It’s going to be hard to convince anyone fair-minded that the President is acting tyrannically by exercising not merely a Constitutional power but a Constitutional duty.

However, should President Obama want to act less confrontationally, he might make the Majority Leader an offer, privately or publicly: if McConnell commits to an up-or-down vote on a nominee by a date certain – let’s say, by May 1 – the President will agree not to make a recess appointment in the meantime. If McConnell agreed, the President could send forward the name of, for example, Sri Srinivasan, the former Deputy Solicitor General confirmed for the DC Circuit unanimously just three years ago. That would put some of the Republican Senators running for re-election in Blue or Purple states in a tough bind – if as many as four of them defected the nominee would be confirmed – but that’s life in the big city. If McConnell refused the offer, as he well might, then the President would have a still stronger justification for proceeding with a recess appointment.

Whether the President could have it both ways by making a recess appointment after a regular nominee had been voted down – thus protecting against a 4-4 tie in an election dispute this fall – depends on details of the Senate rules I’m not fully familiar with, but I think the answer is that he could. After all, the Republicans have more Senate seats to defend, making having to stay in Washington a problem for them.

I’m all for comity between the branches, and between the parties. But that has to be a two-way street, and it hasn’t been for the last seven years. This seems to me like a moment for the President to check off one more item on his rhymes-with-bucket list and assert his prerogatives.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

16 thoughts on “A recess appointment to the Court?”

  1. Stirring the pot, Gerard Magliocca suggests at Balkinization that Obama nominate retired Justice Sandra Day O'Connor as a compromise candidate. The reasoning is (a) that she is 85 and cannot possibly serve long, and (b) "she is the most conservative person that the President would consider nominating and the most liberal person who could get confirmed by a Republican Senate".

    This strikes me as a risky gamble with the gentleman with the scythe, especially as Justice Ginsburg is 82 and Justice Kennedy 79, but I am neither an actuary nor a lawyer nor an American politician.

    1. I would actually be open to that, especially if I were reasonably sure that she wouldn't be confirmed. In the short run, Obama and the Democrats can do a huge amount of damage by nominating obviously qualified candidates and letting the GOP refuse to even allow them a hearing. If I were Obama, I'd been looking for highly qualified Latinos, Asians and Jews. This could easily be a national version of Prop 187.

      But if the Democrats keep the White House and the Republicans either refuse to consider any candidate or, more likely, demand a veto over all appointments, the country will have an even worse constitutional crisis than with Bush v. Gore and the Democrats will have a very stark and difficult choice between playing hardball or total submission. I would hope that the new president would fight and make the case to the country that the continuing dominance of the Republicans is an unacceptable threat to our nation and to our way of life.

    1. Perhaps the Senate should adopt the sound Internet convention against SHOUTING IN ALL CAPITALS.

    2. I have seen this popping up on a lot of conservative websites but I don't understand it. It looks like all Senate Democrats either voted against the resolution or abstained but all the Republicans seemed to have voted in favor. In other words,the motion seems to have been defeated by the Democrats on a party line vote.

      1. It was a motion to recommit to the Judiciary committee. IOW, a motion to kill the sense of the Senate resolution. So an "Aye" was in favor of *killing* the resolution, and a *nay" in favor of going forward with it.

        I had the same reaction until I looked closely.

    3. Hmmm…from the cited article: "Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times." Well, I guess it's OK, or not OK, or objected, or not objected, depending on where you sit.

      Also from the cited article: "On Feb. 14, 2016, President Obama stated that he would not use the recess appointment power to fill the vacancy caused by the death of Justice Scalia, which occurred during a Senate recess."

      Well, consider this proposed statement to be issued by President Obama on Feb. 16: "President Obama said that, in view of the stated position by Senate Majority Leader McConnell to ignore all nominations, he has decided that he would, indeed, use the recess appointment power to fill the vacancy caused by the death of Justice Scalia, which occurred during a Senate recess."

      I wonder if either one of those statements (already issued, or prepared for issue tomorrow) has any legally binding status? (Just kidding; no, I don't wonder. Politicians are allowed to say anything they want, anytime they want, with no legally binding consequences.)

  2. Well, the post still serves to kick off a thread on the Scalia funeral games. I suspect McConnell is doing a repeat of his contre-performance on ACA: intransigence leading to a more liberal result than negotiation could have achieved. On the SCOTUS seat, readiness for dialogue would have put Obama in a dilemma: nominate a centrist with a decent chance of confirmation, or a liberal likely to be rejected as a marker for the autumn election, in the hope of Democratic victories in the White House and Senate. Mitch has taken the former option off the table: there is no point in nominating anybody but a strong liberal. Obama can secure endorsements from both Clinton and Sanders, making nominee X in effect a third member of the ticket.

    BTW, it gives me a macabre armchair detection pleasure to challenge Mark on "before Scalia’s body was cold." The poor man's body is unlikely to have been discovered later than 8 a.m, and he probably died earlier. Abbott's announcement came around 5 p.m, as far as I can discover, McConnell's an hour later. Bodies lose on average 1.5 deg C per hour after death. A drop from the 37 degrees C of life to the 20 degrees or so of Texas ambient would take 11 hours. Mitch is just off the hook on the literal charge, but not the metaphorical one of disrespect.

    Update: John Holbo has a different Cunning Plan for Obama at Crooked Timber.

    1. I was actually going to make a snide comment about reptilian body temperature dropping sharply after sundown but it just seemed too easy. But actually there's a distinct possibility that Mark is still right because Texas is famous for excessive, even painfully debilitating use of powerful air conditioning. In my experience, the air conditioning inTexas hotel rooms varies from a relatively mild "walk in refrigerator" level to the full on "blast freezer" effect either of which would cause body temp to drop like a rock.

      I do, however, agree with you about the irony of the Republican's extreme obstructionism leading to a series of outcome more liberal than if Obama had been able to follow his own very conciliatory instincts. It seems like every proposal of Obama's had its origins on the Republican side but their determination to deny him even the most modest of victories has inevitably block attempts to negotiate away core achievements of the New Deal and Great Society and has actually resulted in slightly more liberal legislation because it required purely Democratic (as opposed to bipartisan) support to pass. So, all hail Mitch McConnell and the Tea Party—saviors of the greatest Democratic and liberal achievements in the history of this country.

      1. The blown hotel a/c works for Lord Wimberley's hypothesis not Detective-Inspector Kleiman's, in that it would accelerate the drop in body temperature. It does however also change the benchmark for "cold", point to Kleiman.
        Update 15/2.
        The crack fictional detective duo of Wimberley and Kleiman have abandoned the search for forensic truth in West Texas, the local administration being in the hands of the Monty Python team. WAPO reports, so it must be true (emphasis added):

        The man known for his elegant legal opinions and profound intellect was found dead in his room at a hunting resort by the resort’s owner, who grew worried when Scalia didn’t appear at breakfast Saturday morning. It then took hours for authorities in remote West Texas to find a justice of the peace, officials said Sunday. When they did, Presidio County Judge Cinderela Guevara pronounced Scalia dead of natural causes without seeing the body — which is permissible under Texas law — and without ordering an autopsy.

  3. It's a good plan regardless of whether the Senate is in recess or not (and it isn't actually clear that the Senate can essentially deem itself to be perpetually and continually in session if nobody's there). Certainly, if the Democrats wanted to play hardball they could do exactly as you say and have a daily or even twice daily quorum call and if enough Democrats show up versus too few Republicans, they can declare the Senate to be in recess and Obama could then make a recess appointment within minutes. Of course, since this requires a willingness on the part of Obama and the Senate Democrats to make a committed, sustained effort at playing hardball, discussing it is an exercise in futility.

    1. I would have no problem if the recess appointment clause were simply repealed; It's not like the time of the founding, with long travel times, when the Senate was only in session part time. Recesses don't last long enough to really matter anymore, there's no particular reason that they should provide a window for the President to appoint somebody without Senate confirmation.

      Except that it's still in the Constitution, for now, and the Constitution is the highest law of the land. My personal reading of this is that, much as I doubt he'd ever appoint somebody I'd approve of, Scalia arguably died during a recess. Also, arguably not, on the reading that the "recesses" referred to were inter-session recesses. It's a judgement call.

      A recess appointment is probably the best resolution, as it would be temporary.

      1. I agree with you about both the inutility of the recess appoint clause in our modern world where people can travel across the country in a day. I also agree that it's likely that for the obvious reasons and the technical ones that Mark has described in his followup post Scalia died during a recess and Obama is entitled to appoint a justice who would serve without confirmation until, I believe, January of 2018. And that might be a good way for everyone to avoid (or at least postpone) a looming constitutional crisis.

        Liberals probably would be more open to an older, more centrist justice with the understanding that he or she wouldn't serve past the point where a replacement would be confirmed by the Senate. Politically, that would demonstrate Obama and the Democrats reasonableness and willingness to compromise which might have significant political ramifications, especially if they eventually decide to play hardball with the Republicans.

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