Fox News’ Chris Wallace suggested that President Obama could temporarily fill Antonin Scalia’s vacancy on the Supreme Court using a recess appointment, which Daily Kos writer Keith Pickering fully encouraged the president to do.
The Senate is in recess until February 22, so technically, yes, Obama could rush an appointment. Doing so, unless the person he appoints is of sterling reputation and universally respected, would bring a dishonor on the presidency that makes Watergate or FDR’s attempt to “pack the Court” look saintly by comparison.
Yet Pickering wrote, “Move fast, Mr. President.”
Lyle Denniston at SCOTUSblog took on the question of whether a recess appointment is possible.
The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains. Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.
Could President Obama make a nominee during that recess? Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action. Both of those circumstances would be entirely within the Senate’s authority.
Should Mitch McConnell call the Senate out of recess, even for a small bit of formality, that would block the president’s play. It would be a very large gamble for Obama to attempt it, and he’d likely lose, given the decision in NLRB v. Noel Canning which Denniston referenced.
The president doesn’t need to move fast, he needs to move slowly. So slowly, in fact, that the next president inherits the privilege and responsibility of filling Scalia’s seat. McConnell should block a lame duck Court appointment as a matter of principle. It would be good to hear him say that.
The Left doesn’t care how much our carefully planned checks and balances are destroyed. They don’t care how much our system of government is damaged. They only play for power.