Obama could bypass Senate to appoint a Supreme Court justice: Here’s how

President Barack Obama pauses as he speaks about the events in Brussels attack before addressing Cubans at El Gran Teatro de Havana, Tuesday, March 22, 2016, in Havana, Cuba. (AP Photo/Pablo Martinez Monsivais)

WASHINGTON (MEDIA GENERAL) – President Obama’s Supreme Court nomination of Merrick Garland is stalled by a united Senate Republican blockade – 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 – April 3.

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)

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.

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 today are astronomically high in 2016 and room for error is nonexistent.

Recess appointment rules

The high court ruled in 2014, in response to Mr. Obama seating three National Labor Relations Board members during a brief Senate recess, 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 SCOTUS 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.

Will he do it?

Supreme Court experts are skeptical that Mr. 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,” predicts Supreme Court Yearbook author Kenneth Jost.

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

Supreme Court visitors wait in line on February 24, 2016. (Credit: Chance Seales)
Supreme Court visitors wait in line on February 24, 2016. (Credit: Chance Seales)

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

That base-galvanizing pitch could end up becoming a ready-wrapped 2016 gift to Republicans, warns 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.

Upcoming recesses

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 reelection.

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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