I’m surprised. Since when does President Overreach demurely pass on a bold show of executive power in favor of consultation with Congress — especially when Republican senators are vowing to block anyone he sends to them?
Obama will not push through a Supreme Court appointment this week, will wait to nominate until Senate is in session -White House official
— Jeff Mason (@jeffmason1) February 14, 2016
McConnell will see to it that the Senate doesn’t recess for the rest of the year, no matter how many “pro forma sessions” that requires, in order to deny O an opportunity for a recess appointment. Minor footnote, though: The Senate is in recess right now. It began on February 12, a day before Justice Scalia passed away, and isn’t set to end until February 22. Obama surely has a short list of potential SCOTUS nominees tucked away somewhere in case of a rainy day; he could, in theory, step to the podium today and send anyone he likes to the Court for the rest of the year, locking down a 5-4 liberal majority until January 2017 at the earliest. It’d be highly unusual (unprecedented, I believe) for a president to rush out a nomination to take advantage of a Senate recess, but if there’s one thing Hopenchange stands for in its late decadent phase, it’s unprecedented unilateral action. Besides, he has a ready-made excuse: “I have no choice but to make this appointment during the recess,” he’d say, “since so many Republicans, from Mitch McConnell to Ted Cruz to Marco Rubio to Donald Trump, have insisted that my nominee will not be given a fair chance at a Senate hearing.” If he nominated Sri Srinivasan, who’s been touted all weekend as a possible nominee, he could note that the Senate confirmed him 97-0 just three years ago to the prestigious D.C. Circuit. “Republicans had no objection to Judge Srinivasan in 2013,” Obama would say. “Why would they object to him now?”
But wait, you say. Didn’t Obama lose a high-stakes Supreme Court case involving dubious recess appointments not long ago? Indeed he did. That was the Noel Canning case, when he tried to appoint three NLRB commissioners during a three-day period when the Senate was holding pro forma sessions. Obama argued that pro forma sessions weren’t real Senate sessions and that the chamber was, effectively, in recess, entitling him to make the appointments. SCOTUS smacked him down, 9-0, holding that three days simply isn’t a long enough interruption of legislative business to empower the president to act and that anything less than 10 days presumptively isn’t long enough. Quote: “A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess appointment power.” But what if the recess was exactly 10 days? And what if the House did consent to it? And what if the Senate wasn’t holding pro forma sessions over that time? Because that’s the situation we’re in right now. Read this post from law prof Elizabeth Price Foley arguing that Noel Canning isn’t a slam dunk to stop Obama under the present circumstances. One question in response is whether Sundays count as a day in the 10-day window. The Court in Noel Canning said they don’t count for purposes of the Adjournment Clause but left it slightly ambiguous whether they count for the Recess Appointment Clause. Another question I’d have is whether Obama could make his recess appointment during a 10-day recess or only after 10 full days have elapsed. In this case, the latter scenario isn’t an option: The Senate will reconvene at noon on the 22nd, exactly 10 days after it recessed, which means in theory they’d be back in session before the constitutional “window” has opened.
But let the legal eggheads hash all of that out. The political question here is why wouldn’t, or shouldn’t, Obama try a recess appointment and let SCOTUS decide? Worst-case scenario is that he loses and the Court deadlocks at 4-4 for the next nine months. In the meantime, he’d get to preen to his base about having had no choice but to act unilaterally once again because those bastard Republicans won’t give his nominee a chance. In fact, while the case is pending before SCOTUS, O could use the public spotlight to emphasize that the lawsuit could go away if the GOP simply held a hearing and voted. The best-case scenario, of course, is that the Court sides with him and Obama’s judge is seated. Since the recess appointment expires in January, Hillary would still get to argue that the fate of a durable 5-4 liberal majority turns on the outcome of the election in November. And in the meantime, seating a liberal on the Court this year could tilt several important rulings, including ones on abortion and unions, towards the left. Why shouldn’t Obama try it? What does he have to lose?