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Thursday, November 17, 2016

Should/Can Obama Make a Supreme Court Recess Appointment?

Totally not clear to me. I read a piece in TNR today by David Dayen, a writer whom I've respected since his days at Hullabaloo way back in the 'aughts, for his take:

Here’s how it would work. Article II, Section 2 of the Constitution states, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” This has been used for Supreme Court vacancies before—William Brennan began his Court tenure with a recess appointment in 1956. Any appointments made in this fashion expire at the end of the next Senate session. So a Garland appointment on January 3 would last until December 2017, the end of the first session of the 115th Congress.
Surprisingly, there's not a whole lot written on this, but if it were at all possible, it could give liberals a 5-4 majority for a year, potentially making decisions on earthshaking cases, and also gumming up the works for perhaps a couple of years, which is what I believe we need to do in so many ways.

Rolling Stone appears more dubious on the topic:

Rolling Stone asked Nan Aron, president of Alliance for Justice and a longtime crusader against conservative justices (she waged high-profile battles against Roberts' and Alito's confirmations) if Obama has any options left with regard to the high court. Her answer, in short: No – but that doesn't mean progressives should let it go. 
Regarding the recent petition, Aron says she "can't envision a procedural maneuver that would allow the president to place Garland on the Court." Because there is no precedent, it's hard to envision how it would work, technically – would Garland just show up to chambers one day and take Scalia's seat? But more important, Aron says, is the fact that the idea has "got, as far as I know, very little support among individuals from either side of the political aisle." 
There has been slightly more talk around the possibility of Obama making a recess appointment – to install Garland in the seat, temporarily, between sessions of Congress. "The difficulty with a recess appointment is that he would only have that position on the Supreme Court for a very limited amount of time," Aron says. "He'd be on the Court for a year and it doesn't serve the public, the Court or justice to put anyone on the bench on the Supreme Court [for such a short amount of time.]"
It sounds like Obama can, but he won't. It doesn't seem like his style to me.

I'm still not positive he can... if you have a take, drop it in the comments!

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