The Battle for the Supreme Court
By: jamesbaxley
The 2016 presidential election was a
trifecta, a hat trick of sorts for upsets in the Democratic Party: The
Republicans won the presidency, regained the Senate, and will fill in the spot
in the Supreme Court.
The death of Supreme Court Justice
Antonin Scalia on February 12, 2016 was a shock to the legal community as well
as for many Americans. Scalia's death left a big hole to fill in the United
States legal system. He was a man of profound intellect and legal opinions
which bordered on stylish and graceful.
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| SUPREME COURT JUSTICE ANTONIN SCALIA |
According to Kevin Ring, the author of the 2004 book, Scalia Dissents: Writings of the Supreme Court's Wittiest, most Outspoken Justice, "His opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law interesting.”
Scalia was the son of Trenton N.J. and
a resident of Virginia when he died. He was one of the last legacies of Ronald
Reagan’s presidency. Choosing Scalia's replacement, though hard to replace,
looks as if it will be up to a Republican president.
The confirmation of Chicago-born Judge
Merrick Garland, the chief judge of the United States Court of Appeals
for the District of Columbia Circuit and the Democrats pick to replace
Scalia, seems unlikely as there is less than two weeks until Donald Trump’s
inauguration.
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| Judge Merrick Garland |
There is one chance left to get
Garland confirmed which is such a stretch it isn’t even worth considering, this
last ditch effort is the “inter-session recess appointment.” In the five
minutes between the time the Senate gavels the 114th Congress out of session
and the time the Senate gavels the 115th Congress into session, the president
can appoint Garland to the high court.
January 3, 2017, just before noon,
between the outgoing 114th Congress and the incoming 115th Congress, President
Barack Obama would just have five minutes to test his recess appointment
powers.
President Teddy Roosevelt the most
successful practitioner of the “inter-session recess appointment.” In 1903 the New
York Times called Roosevelt’s use of the “inter-session recess appointment”
an “infinitesimal recess” because of Roosevelt’s success at appointing 168
officers.
The downside to “inter-session recess
appointments” is that the approval of Garland by the Senate would have to
happen by the end of the next session of Congress, or the position becomes
vacant again. Garland's approval by the Republican led Senate, at least
right leaning for the next two years, would most likely be a dream.
Article II, Section 2 of the U.S. Constitution authorization of recess appointments,
which states:
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.
Democrats and those who oppose Trump's presidency have argued that the
Senate has a constitutional obligation to act on Obama’s Supreme Court
nomination. Opposing the claim of "constitutional
responsibility," Jonathan H. Adler, a Professor at Case Western Reserve
University School of Law thinks there is “no support in the relevant
constitutional text, constitutional structure, or the history of judicial
nominations” which supports this claim.
Strong policy and prudential arguments advocating that the Senate should
at once consider all judicial nominations to the Supreme Court and
Federal Courts for the reasoning of the belief the Senate has some sort of
constitutional obligation to take specific actions is erroneous.
In an unprecedented move, Senate
Republicans (under Senate Majority Leader Mitch McConnell) refused to consider
Garland's nomination. Gabrielle Levy of U.S. News and World Report writes that the Senate would be holding
"no hearings, no votes, no action whatsoever" on the nomination on
any Supreme Court nomination. McConnell continues, “Obama has less than a year
left in his term, he should not get to make a lifetime appointment until the
American people got to vote on a new president.”
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| THE SUPREME COURT OF THE UNITED STATES |
Another roadblock to Garland’s
appointment is in the Noel Canning v. NLRB case. The Supreme Court has
held that both intra-session and inter-session recesses would
be unconstitutional. In the 2016 Presidential election, people involved with
the Democratic Party either as politicians or voters, most likely politicians
have argued that intra-session recess appointments is what the Supreme Court
was speaking of. Justice Breyer’s opinion debunks that myth:
We conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.
The inter-session recess would only be
good for a year and recess appointing Garland to the Supreme Court would create
a vacancy on the U.S. Court of Appeals for the D.C. Circuit which would be
filled by President Donald Trump.
So a Hail Mary in the political ring if not successful would have bigger
consequences than a Hail Mary in the NFL.
Where’s Boomer when you need him?