What are Obama's Chances of Replacing Antonin Scalia?

Could He Do it With a Recess Appointment?

Antonin Scalia, Former Associate Justice of the Supreme Court
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 With his final term fast running out, President Obama will almost certainly nominate a replacement for the late Justice Antonin Scalia on the U.S. Supreme Court. At the same time, the Republican-controlled Senate will almost certainly try to block the approval of his nominee. So could or would President Obama use a recess appointment to at least temporarily bypass the Senate?

The passing of Justice Scalia presented President Obama with an unexpected chance to replace one of the strongest conservative voices – and votes -- on the Supreme Court with a justice more closely aligned with his Democratic party’s progressive agenda.

Blocking Maneuvers and Recess Appointments

The U.S. Constitution grants the President of the United States the power to nominate Supreme Court justices, subject to the approval of the Senate. When the President is of one political party, and the Senate is controlled by the other party, the Senate can, and often does, either reject or delay approval of the president’s nominations.

However, Article II, Section 2 of the Constitution also gives the president the often controversial power to make temporary appointments to any federal office requiring Senate approval whenever the Senate is in recess without Senate approval.

Persons appointed through recess appointments may serve only until the end of the next session of the Senate or no more than two years. In order to continue to serve after that, the nominee must be formally nominated by the president and confirmed by the Senate.

Recess Appointment to Supreme Court Have Worked, But…

Since 1791, nine Supreme Court justices have been seated on the court as recess appointees and eventually confirmed by the Senate. In fact, Supreme Court “super stars” Oliver Wendell Holmes, Jr., Earl Warren, and William J. Brennan, Jr. all began their long and illustrious terms as temporary recess appointees.

While seven presidents beginning with President George Washington in 1791 have made Supreme Court recess appointments, none have been attempted since President Dwight Eisenhower successfully appointed Justice Potter Stewart in 1958.

Since then, the odds against President Obama or any future president succeeding in making a Supreme Court recess appointment have grown far larger.

Indeed, the Supreme Court itself made the recess appointment of justices less likely through its 2014 decision in the case of National Labor Relations Board v. Noel Canning.

The Supreme Court gave both presidents and the Senate a little recess appointment love in this little-publicized case. However, the Senate clearly got the biggest kiss.

The Presidents’ Kisses

To the benefit of presidents, the Court ruled that recess appointments could be made during “brief” Senate breaks, like those taking place in the middle of regular annual Senate session and at the end of yearly sessions, rather than during full, longer-term recesses only.

In addition, the Court ruled that presidents could make recess appointments even if the position being filled had become vacant long before the Senate’s recess began.

The Senate’s Kisses

To the good of the Senate, the Court ruled that before a president can make any recess appointments, the Senate recess must last at least three days.

More importantly, the Court clarified that the Senate is free to decide when it takes recesses and how long those recesses last. This allows the Senate to take brief recesses without the need to pass a resolution declaring the length of the recess.

The Specter of the 4-4 Tie

In urging the Senate to approve his nominee to replace Justice Scalia quickly, President Obama will surely stress the very real probability of an eight-justice Supreme Court issuing 4-4 tie decisions.

There are no tie-breaker procedures in the Supreme Court. In the event of a tie vote, the ruling of the lower federal court or state supreme court stands. It is as if the Supreme Court had never even heard the case.

For example, should the constitutionality of a particular state law be challenged in court, but ruled to be constitutional by the lower federal court, the law would automatically stand as constitutional in the event of tie vote by the Supreme Court.

The current (2015) term of the Supreme Court runs through October 2, 2016. The Term of the Court begins, by law, on the first Monday in October and lasts until the first Monday in October of the next year.

One Way or Another, It Will Be Hard

The matter of replacing Justice Scalia is further complicated for President Obama by the fact that 2016 is an election year, during which the Senate usually takes recesses to allow its members running for reelection to return to their states to campaign.

In order for President Obama to make a Supreme Court recess appointment, one of those recesses would have to last at least three days, and go on without a few Senators returning to hold brief “pro forma sessions,” during which little, if any, real legislative activity takes place. Both of those scenarios are completely under the control of the Senate, and both would effectively block a presidential recess appointment.

The bottom line is that the best chance President Obama has of getting to replace Justice Scalia on the Supreme Court is to find a person so respected, revered an accepted by conservatives and liberals alike, that Senate Republicans and Democrats alike would feel ashamed not to vote for them. Good luck with that, Mr. President.