How Obama could bypass Senate on SCOTUS appointment

Republicans vowing not to consider President Obama's nominee to Supreme Court

Federal appeals court judge Merrick Garland, right, stands with President Barack Obama and Vice President Joe Biden as he is introduced as Obama's nominee for the Supreme Court during an announcement in the Rose Garden of the White House, in Washington, Wednesday, March 16, 2016. (AP Photo/Pablo Martinez Monsivais)

WASHINGTON (MEDIA GENERAL) — President Barack Obama’s nomination of Merrick Garland to the U.S. Supreme Court is stalled by a united Republican blockade in the U.S. Senate — but the White House retains one, albeit risky, option to bypass obstruction.

It’s called a recess appointment.

The Senate is currently in the middle of one such recess, scheduled to be out of town March 19 to April 3.

Under the law, when Congress gavels itself into recess and senators travel back to their home states, the president has the authority to appoint officials who otherwise are subject to the confirmation process.

This photo provided by the U.S. Court of Appeals District of Columbia Circuit shows Chief Judge Merrick Garland in 2013, in Washington. (U.S. Court of Appeals District of Columbia Circuit via AP)
This photo provided by the U.S. Court of Appeals District of Columbia Circuit shows Chief Judge Merrick Garland in 2013, in Washington. (U.S. Court of Appeals District of Columbia Circuit via AP)

The appointment isn’t permanent. The appointee — in this case, Judge Garland — must go through the standard confirmation process once Congress officially begins a new session, which happens every two years.

Both Republicans and Democrats have used the recess appointment process in the past for a range of positions, including filling vacancies on the Supreme Court. But the stakes are astronomically high in 2016 and room for error is nonexistent.


In response to Obama seating three National Labor Relations Board members during a brief Senate recess, the high court ruled in 2014 that the president’s recess appointment power is indeed limited.

In the unanimous decision, “Justice Stephen Breyer said in his majority opinion that a congressional break has to last at least 10 days to be considered a recess under the Constitution,” reported Fox News.

To avoid risking a 10-day recess, Senate Republicans can gavel the chamber into sessions — even with just a handful of members present — to consider non-contentious legislative business and stave off a recess appointment.

These procedural technicalities allow Republicans “to avoid the formality of a recess by taking some legislative action, however minor or inconsequential and however few senators actually take part in some action,” explained SCOTUSblog’s Lyle Denniston.


Supreme Court experts are skeptical that Obama would exercise his recess appointment power to install Garland. The main roadblock, as they see it, is one of public relations.

“With President Obama already under criticism for acting unilaterally on immigration, for instance, clearly a recess appointment bypassing the Republicans in the Senate would have touched off a firestorm,” predicted Supreme Court Yearbook author Kenneth Jost.

With 63 percent of Americans favoring confirmation proceedings, the White House might be loath to upset its PR advantage by appearing too political.

generic u.s. supreme court
A file photo of the U.S. Supreme Court building in Washington.

Republicans will argue that before spiking the ball on the Supreme Court, Obama has “taken unilateral action on immigration and healthcare,” said Chris Edelson, author of Emergency Presidential Power.

That base-galvanizing pitch could end up becoming a ready-wrapped 2016 gift to Republicans, warned Edelson. He foresees Senate Republicans telling voters, “We are going to fight for you and we are not going to let President Obama appoint anyone.”

Other experts argue that the White House should go big, naming a qualified replacement and daring conservatives to toss him or her out in 2017.

“If I was the president, I would nominate my first choice, because then they’re going to be in a position of having to throw that person off of their nice comfortable chair on the Supreme Court,” opined Dr. Karen O’Connor, American University professor and author of American Government: Roots and Reform.


The Senate is scheduled to be in recess nearly the entire months of July and August while members of Congress are at home campaigning for re-election.

If the president decides to use his recess appointment powers down the road, he’ll certainly have a 10-day span to make it happen.

Follow Chance Seales on Twitter: @ChanceSeales

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