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Why Obama Should Want to Make a Recess Appointment to the Supreme Court
Why Obama Should Want to Make a Recess Appointment to the Supreme Court

JURIST Guest Columnist William G. Ross of the Cumberland School of Law at Samford University discusses President Obama’s refusal to make a recess appointment to fill the present vacancy on the US Supreme Court…

In refusing to make a recess appointment to fill the present vacancy on the US Supreme Court, President Obama is taking a calculated risk that Americans who want a Democratic president to make the appointment may come to regret.

Article II, section 2, clause 3 of the Constitution provides that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Since Congress was in recess last Saturday when Justice Scalia died and will remain in recess until noon on February 22, Obama could, until 12:00 pm on Monday, appoint a Supreme Court Justice who could take office immediately. Such a justice could remain in office until the end of the first session of the next Congress, presumably late in 2017, or until the Senate confirmed the appointment of a different person nominated by the next president.

At least one dozen Supreme Court justices have been among the hundreds of federal judges and thousands of federal officials who have taken office through recess appointments, which began during the earliest years of the Republic. President Washington appointed one Justice, Chief Justice John Rutledge and several lower federal judges in this manner. The most recent president to make recess appointments to the court was Eisenhower, who used this method for Chief Justice Earl Warren in 1953, William J. Brennan in 1956 and Potter Stewart in 1957. The US Supreme Court recently affirmed the constitutionality of recess appointments during both inter-session recesses (like the present recess) and intra-session recesses in National Labor Relations Board v. Noel Canning. The US Court of Appeals in two decisions has sustained the constitutionality of recess appointments of federal judges, rejecting arguments that such appointments conflict with the provisions of Article III of the Constitution that guarantee life tenure and undiminished compensation for federal judges. (US v. Woodley, 726 F.2d 1238 (9th Cir. 1983), cert. denied, 467 U.S. 1048 (1986) and Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005))

Obama’s reasons for refusing to use this constitutional means of doing a temporary end-run around the Senate confirmation process are not entirely clear. Some reports suggest that he fears that such a method would seem sneaky and thereby alienate public opinion and antagonize senators. Obama may wish to avoid making himself and the nominee vulnerable to allegations that he is not presenting the nomination in a direct and open manner or taking unfair advantage of the Senate’s recess. Even many Americans who disagree with those Republicans who contend that a president should not make a court appointment during his final year in office may believe that a president who is nearing the end of his term should not shuffle anyone onto the court without the advice and consent of the Senate, particularly since Obama’s replacement of Scalia could critically alter the court’s political balance. Such a move also would provide grist for opponents of Obama who assail him so harshly for lacking proper respect for Congress. It could further poison Obama’s relations with Congress and cost the Democrats votes in the upcoming elections. Obama and his advisors also might fear that a recess appointment could generate legal challenges that would have the practical effect of preventing the Senate from considering his nominee. In particular, there might be an effort to re-open the Article III questions that the courts addressed in Woodley and Evans, which the Supreme Court has not resolved. There also is a possibility that Obama’s antagonists would deny that the Senate actually is in recess. Although the court’s detailed consideration in Canning of what constitutes a recess provides strong support for an assumption that Congress presently is recessed, there is perhaps just enough ambiguity to spark a lawsuit about that issue.

Such an appointment also would require him to make a quick selection decision, although one would assume that his choice would not be hasty or ill-informed since we would hope that his Administration gave careful consideration to possible nominees long before Scalia died.

If the justice appointed through the recess procedure failed to receive confirmation by the Senate and had to leave the court, the justice’s departure could damage the court’s prestige by casting a pall over the legitimacy of decisions in which that justice had participated, especially if the justice cast the deciding vote and even more so if these were high profile cases. Justice Stewart cast the deciding vote in six cases when he sat as a recess appointee during most of the court’s 1957-58 term, although none of those had great constitutional significance. While Warren did not determine the outcome of any decision when he sat as a recess appointee during five months of the 1953-54 term, he may during that time have influenced other justices to vote against the racial segregation of schools in Brown v. Board of Education. Although the ejection of a recess appointee would not affect the legal validity of any action he had taken while a member of the court, his departure might diminish public support for controversial decisions in which a justice had cast a deciding vote, generate challenges to set aside the murky precedent, and call attention yet again to the indeterminacy of judicial decision-making. And, of course, the unsuccessful litigant might feel that she had been the victim of an unfair adjudication.

Perhaps the best argument against a recess appointment is that it might diminish the independence and integrity of the judiciary since there is at least a possibility that the probationary justice would alter his or her arguments, votes and written decisions to help curry favor, or at least diminish opposition, among the senators who will vote on his or her nomination if the next president nominates that person. The likelihood that the nomination process will be contentious exacerbates such a danger. Even if the nominee did not allow such considerations to affect his or her performance on the court, there could be a public perception that they influenced the justice, whose reputation could unfairly suffer as the result of unfounded suspicions, which also could unfairly erode respect for the court. Although there were no significant aspersions cast upon the motives of Warren, Brennan and Stewart during their service as recess appointees, the Supreme Court process during the 1950s was far less rambunctious and all three justices were practically assured of confirmation.

The Senate considered these problems in 1960 when Democrats who were troubled by Eisenhower’s three recess appointments to the court persuaded the Senate to approve a resolution declaring that such appointments were not in the interests of the court, the recess nominees, litigants or the American people and should be avoided except in “unusual” circumstances in which there had been a “demonstrable breakdown” in the appointments process.

Obama could plausibly argue that there has indeed been a “demonstrable breakdown” in the process since many Republican senators, including Majority Leader McConnell, have vowed to block any nomination that Obama might make. Since Republicans appear to have the ability and will to make good on their threat, the vacancy on the court is likely to last at least a year if Obama does not make a recess appointment. Although the court could properly adjudicate cases and conduct other business with only eight Justices, the vacancy would mean that some important cases might be decided by a four to four vote, which would leave the lower court decision standing and deprive the nation of clear guidance on issues that are so important that the court has regarded them worthy of its consideration. Although some of the cases on this term’s docket are so far along that the new Justice presumably would not participate in their adjudication, there are other cases in which the recess appointee could take part in oral argument and vote. If a Democrat is elected president in November, the vacancy could last much longer than a year if Republicans in the next session of the Senate have the numbers and will to obstruct a nomination, leaving the court with only eight members for considerably longer than a year, perhaps throughout the court’s 2016-2017 term.

If Republicans are as adamant about blocking Obama’s nominee as they say, a recess appointment would provide Obama with his only realistic hope of filling the seat. In response to allegations that he has circumvented the confirmation process and denigrated the Senate, Obama could point out that he had no practical alternative since Republicans have vowed to prevent the confirmation of anyone he nominated. Although Obama seems to hope that a more cooperative approach will help to overcome Republican obstruction, his efforts to placate his congressional opponents during the past seven years nearly always have come to naught.

A recess appointment also should be an enormously attractive option for Obama because a sitting justice probably could obtain confirmation more easily than a mere nominee.

If the next president is a Democrat, he or she presumably would nominate the justice appointed by Obama. Even if Republicans in the next session of the Senate have enough votes to defeat the nominee, at least some otherwise antagonistic senators might be loath to oust an incumbent justice. In addition to diminishing the prestige of the court, disrupting its operations and unsettling the law, such an ejection might appear too overtly political. Moreover, some senators might be unwilling to send the justice packing insofar as a justice who has served for a year presumably would be better known to senators, both professionally and perhaps personally. Such considerations probably would more than neutralize any lingering antagonism about the manner in which the justice was appointed, especially since Obama would have left office by then.

If the next president is a Republican, the new president presumably would nominate someone else early in his term, and that person presumably would be quickly confirmed if the Senate remained Republican. In that event, a recess appointment would at least have provided Obama and progressives with a justice who might have had the opportunity to cast the deciding vote in a few cases in a manner that would have pleased them.

Obama therefore appears to have almost nothing to lose and potentially much to gain by making a recess appointment. His reluctance to do is puzzling, perhaps a reflection of the caution, detachment and desire to avoid confrontation that has characterized his presidency and frustrated so many progressives. Although a recess appointment might not serve the long-term institutional interests of the Supreme Court, it is almost certain to serve the political interests of progressives. It is difficult to imagine that other presidents, such as Woodrow Wilson, Franklin Roosevelt, Lyndon Johnson, Richard Nixon and Ronald Reagan, who did not hesitate to provoke controversies over Supreme Court appointments, would have shrunk from a confrontation that would have provided them and their political supporters with such a rich opportunity to change history by altering the complexion of the court.

William G. Ross is the Lucille Stewart Beeson Professor of Law at the Cumberland School of Law at Samford University. He has published several books about American constitutional history and numerous articles about constitutional issues, including the federal judicial appointments process.

Suggested Citation: William G. Ross, Why Obama Should Want to Make a Recess Appointment to The Supreme Court, JURIST – Academic Commentary, February 17, 2016, http://jurist.org/forum/2016/02/william-ross-supreme-court-appointment.php


This article was prepared for publication by Maria Coladonato, JURIST’s Managing Editor. Please direct any questions or comments to her at commentary@jurist.org

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