Sunday, February 14, 2016

The Mitch Factor: How the Senate can block a recess appointment by Obama

In the wake of Justice Antonin Scalia's death, some of the talk on the news shows has been about what the President and the Senate can and can't do in regard to Supreme Court appointments. According to Article II, Section II of the Constitution--the Article that outlines the powers of the executive branch, the president ...

shall nominate, and by and with the Advice and Consent of the Senate, ... Judges of the supreme Court ... whose Appointments are not herein otherwise provided for, and which shall be established by Law.

Note that nothing here says that the Senate has to let Obama make an appointment. Obama can attempt it, and the Senate has ways under their rules, to block it. Nothing in this section prevents the Senate from doing it.

But then there's a provision that looks very ominous from a conservative perspective:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This is the provision that has gotten some attention in the discussion over Scalia's successor, an option some are calling the "nuclear option": Obama can simply make a recess appointment to replace him and the Senate can't do a thing about it. 

But there are three things about this. The first is that it could have negative political consequences. All those liberals who are now talking about the obligation the Senate has to allow a debate on the President's nominee would have to do a complete about face, since the nuclear option here would prevent a debate as well. But, then again, liberals do about faces all the time.

Secondly, such an appointment would appear to be temporary: "by granting Commission which shall expire at the End of their next Session." So, even if Obama did make a recess appointment, the Senate would still have to confirm it, before a certain time. If Obama tries to do this, he will have to do it between Dec. 18 and the first week of January, 2017. But if he does this, the appointment will expire with about a week to spare at the end of the year, which is when the session ends. So even in this case, the appointment would only be for about a year. This is still bad for conservatives, but not quite as bad.

But it is the final consideration here which is the most significant because it is the most likely to actually happen. It is the way, which a friend of mine who is in a position to know these issues points out, that will prevent Obama from making any kind of recess appointment. It is this: the Senate simply does not go into recess. This is completely under the control of Sen. Mitch McConnell. He has to know this--and surely has already figured it out.

McConnell checkmates Obama. Watch it happen.


Anonymous said...

Bork em, Mitch.

jack said...

From a strategic standpoint is this a mistake since the democrats may win the election (and take back the senate). If so might it make sense to work towards a compromise candidate with Obama, rather than risk hillary putting in a liberal activist?

Martin Cothran said...

Good point. I am going to address this in a post in the next couple of days about the problem with procedural arguments, particularly when they are used as substitutes for substantive arguments.