Replacing Scalia: Could Obama Make a Recess Appointment?

This article first appeared on the Supreme Court of the United States blog.

The Senate is currently in recess until February 22. The recess began on Friday. Whether this opens an opportunity for a recess appointment depends upon how Senate leaders interpret an adjournment resolution approved last Friday. That will determine whether it will meet for brief activity during the recess, which could close that opportunity.

The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the chief executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action.

Within a few hours of the death of Justice Antonin Scalia, it became abundantly clear that, first, President Obama will choose a possible successor and try to get the Senate to go along, and, second, the GOP leadership of the Senate say they will try to block any such nominee from final approval.

If that does result in an impasse, President Obama may ponder the possibility of putting on the Court a new justice of his choosing, to serve temporarily. The problem, though, is that less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate's capacity to frustrate such a presidential maneuver.

It is true that one of the justices regarded as a giant on the Court's history, William J. Brennan Jr., actually began his lengthy career with just such a short-term appointment. The chances of that happening again today seem to have diminished markedly.

The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains. Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session. The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.

The Supreme Court had never clarified that power until its decision in June 2014 in National Labor Relations Board v. Noel Canning.

The decision was something of a compromise. The Court expanded the concept of when the Senate would be in recess so that the president could make a temporary appointment, but it also gave the Senate more control over when it does recess and how long the recesses last. The gesture toward the Senate's choices was probably the more important result.

Here, specifically, is what the Court decided:

First, on the president's side, the Court ruled that the recess appointment power applies when the Senate leaves town for a break in the middle of an annual sitting, or a break at the end of each annual session.

Second, also on the president's side, the decision declared that the president during a recess can fill a vacancy even if the opening occurred well before the recess began.

Third, on the Senate's side, the ruling made clear that it has to last more than three days, without saying how much more time must pass without the Senate out of town and doing nothing.

Fourth, strongly on the Senate's side, the decision left it largely up to the Senate to decide when it does take a recess, allowing it 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.

Suppose President Obama goes ahead with a nomination to the open seat on the Court, and suppose that the Republican-controlled Senate chooses not to allow that nominee. The GOP has enough seats in the Senate to control that scenario.

Suppose, then, that the Senate goes into recess to allow its members who are running for reelection to spend some more time campaigning back home.

Could President Obama make a nominee during that recess? Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action. Both of those circumstances would be entirely within the Senate's authority.

In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.

The same situation would likely apply when this year's Senate session comes to an end, and the senators take a recess before the next Congress assembles.

The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: If he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.

Lyle Denniston has been covering the Supreme Court for 57 years. In that time, he has covered one-quarter of all of the justices ever to sit, and he has reported on the entire careers on the bench of 10 of the justices. He has been a journalist of the law for 67 years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney.