Seth Barrett Tillman writes about the political and legal aftermath of Justice Scalia’s passing.
So if you are advising the President … before urging the President to install a U.S. Supreme Court Justice via a unilateral recess appointment … before urging the President to act against the will of the Senate majority, think carefully, think dispassionately, think coolly. You may end up, not empowering the President, but energizing the long moribund United States Senate. A fitting further epitaph for Antonin Scalia?
These ideas were developed in full in a 2007 four-part exchange between Professor Kalt and myself…
Worth reading in full.
11 thoughts on ““A Quick Thought on Presidential Recess Appointments””
First, If Bam is going to try a recess appointment, he better have some fully vetted names in his pocket right now. He only has a week in which to do it. I don’t know that you can start a search from scratch and get clean names in a mere week. Appointing someone who turns out to be e.g. a habitual drunk driver would be a political catastrophe.
Therefor, I don’t think that Hussein will try a recess appointment. The tactical problem is that a recess apointment would be aggressive and put the onus on him. He would then be the subject of the politics.
What Bam really wants is to make the racism, homophobia, and radicalism of the Republicans the subject. He can do that by a nomination in regular order. I am sure that Obama will nominate some communist who is a certified triple minority, e.g. gay, black, transsexual. The media will then lumber the Rs as racists and homophobes for opposing zir.
I dunno ’bout this SBT guy. First you stop this in the Senate by not recessing. I believe that’s the way they intend to do it. As well you have the problem of the missing right wing justice. Now it’s 50/50 right left and you have to chose whether you want to stall for a possible better choice and put up with the cases decided by the eight for now, or let him appoint someone.
As I understand it, and I am not a lawyer, is that Eisenhower’s recess appointment of Brennan was to keep the court staffed until a confirmation hearing was held. So while Obama may appoint someone, the next president will still be allowed to select a justice and have them confirmed.
To add to the discussion, Robert Schwartz is correct as is PenGun’s suggestion. However in PenGun’s case the Senate is already in recess and it would rely on the Democratic Minority Leader, Harry Reid, to give consent to recall the Senate back in session to terminate the current recess. I seriously doubt Reid would consent.
PenGun would be dangerous if he knew what he was talking about. If SCOTUS splits 4/4, the holding of the lower court stands, but the opinion of SCOTUS has no precedential value. Therefore, constitutionalists can put up with an 8 member court for a very long time.
Pengun: You are correct that the Senate can block recess appointments by not recessing. But, they did recess a week ago until February 22. Whether or not Obama can use this time, or even wants to, is another question. My tendency is to think that he is not positioned to use it, and he probably does not want to go that route.
“PenGun would be dangerous if he knew what he was talking about. If SCOTUS splits 4/4, the holding of the lower court stands, but the opinion of SCOTUS has no precedential value. Therefore, constitutionalists can put up with an 8 member court for a very long time.”
Dangerous I am not. Well in video games I actually am, but hey.
No the lower courts, as far as I can tell are quite a bit more left wing, so leaving it there is no solution for the right.
American politics is rather dense. I may make mistakes, and have.
American politics is rather dense. That’s OK, so are most of its participants.
PenGun: The lower courts are limited by their geographic scope. They cannot do much permanent damage. The Supreme Court is waht counts.
Obama and Reid packed the DC Circuit by removing the filibuster for lower courts when the Democrats had a majority.
That will now pay off for them until the election. Obama probably could not find a credible candidate who would agree to be a sacrificial lamb for a year.
He will do what he does best; posture and virtue signal.
“Moving quickly to begin the process of filling the unexpected vacancy on the Supreme Court bench, President Obama spent much of the weekend compiling a shortlist of gay, transsexual abortion doctors to replace the late Antonin Scalia, White House sources confirmed Monday. “These are all exemplary candidates with strong homosexual values and proven records of performing partial-birth abortions, but am I missing anyone?” Obama reportedly asked himself while reviewing his list of queer, gender-nonconforming, feminist Planned Parenthood employees, all of whom were also said to be black immigrants. “I definitely have enough post-op transsexuals on the list, but it is a little light on pre-op candidates. And I should probably add a cop killer or two on here just to round out my options.” Sources later confirmed that Obama was attempting to rapidly narrow the list down to the single best nominee to submit to the Senate in hopes of wrapping up confirmation hearings before his choice had to leave to attend the Hajj pilgrimage.”
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