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.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.