Recess appointment to replace Scalia?

[Blue3]

Since Congress seems to be in recess now, people are saying Obama should just do a recess appointment.

But haven't Republicans been using some arcane technicality, so Congress is never formally in recess, that's the reason why Obama has hardly had any recess appointments?
And when Obama once tried to recess-appoint some during this time anyways, since it was a recess in all but technicality, he was overruled 9-0 by the Supreme Court since it still wasn't technically a recess?
http://www.politico.com/story/2014/06/supreme-court-recess-appointments-108347

Or are they really in recess now, making a recess appointment possible?

[Ebsy]

The recess would have to last 3 days for Obama to make the appointment.

[This account no longer in use.]

If Obama did this, some group of militant conservatives would decide that violence is the answer.

[Blue3]

If Obama did this, some group of militant conservatives would decide that violence is the answer.

Eisenhower did this too.

Dozens of picks to the Supreme Court have been recess appointments.

The recess would have to last 3 days for Obama to make the appointment.

I thought it's never been settled how long a recess needs to be??

But anyways, it's more than 3 days this week.

[Mr. Reactionary]

Plus, wouldn't a recess appointment only last until the Congress reconvened? We're having a similar issue in Virginia with one of our Supreme Court Justices who may or may not have been on the Court last fall. Our State constitution is different of course, but I thought recess appointments were supposed to be temporary with a fixed term that automatically expires within a certain amount of time after the recess ends.

[DrScholl]

I don't know if he can, but what I do know is that Republican feelings are not a valid legal reason for him not to be able to make a recess appointment.

[Virginiá]

That would be extremely dumb.  It's the only obvious way Obama would lose the PR war over this, and the recess appointment has to resign in Jan 2017 anyway, so we are back in the same long run situation as if the seat were held open.  

A better idea would be to wait until right after Trump wins the SC primary, then have Hillary Clinton announce that she will nominate Obama to SCOTUS on her first day in office if the seat is still open.  That would basically force a deal on someone center left this year.

If he did a recess appointment of a severely liberal justice near the end of the year and a Republican won the White House this November, but Democrats somehow took back the Senate - Could Democrats then nuke the 60-vote threshold and confirm Obama's liberal justice? Or does that person need to be re-nominated by the new president?

Because if a Democratic Senate could confirm that justice, then it might be a good insurance policy against the possibility of a Republican POTUS in 2017.

[Torie]

That would be extremely dumb.  It's the only obvious way Obama would lose the PR war over this, and the recess appointment has to resign in Jan 2017 anyway, so we are back in the same long run situation as if the seat were held open.  

A better idea would be to wait until right after Trump wins the SC primary, then have Hillary Clinton announce that she will nominate Obama to SCOTUS on her first day in office if the seat is still open.  That would basically force a deal on someone center left this year.

If he did a recess appointment of a severely liberal justice near the end of the year and a Republican won the White House this November, but Democrats somehow took back the Senate - Could Democrats then nuke the 60-vote threshold and confirm Obama's liberal justice? Or does that person need to be re-nominated by the new president?

Because if a Democratic Senate could confirm that justice, then it might be a good insurance policy against the possibility of a Republican POTUS in 2017.

Filibusters are not used for SCOTUS nominees traditionally, and if one were tried, the filibuster would be formally nixed for that purpose. Reid already killed it off for lower federal court nominees.

Recess appointments end at the end of the Senate session, so if made prior to Jan 3, that appointment would end on Jan 3. I suppose if the Dems take over the Senate on Jan 3, then the recess appointment could be renominated to Jan 20, and then confirmed. Or if somehow the Senate is in recess between Jan 3 and Jan 20, then the recess appointment would last two years.

[Bacon King]

This is the adjournment resolution currently in effect: https://www.congress.gov/bill/114th-congress/senate-concurrent-resolution/31/text

As it was passed by both Houses of Congress, the Senate is in recess with no pro forma sessions and it can not be called back into session before February 23 unless Harry Reid consents

And NRLB vs Canning specifically clarified that recess appointments can occur during recesses during a session of Congress

[Atlas Has Shrugged]

Well, in that case, Obama should privately threaten to recess appoint Goodwin Liu if the senate doesn't commit to confirm a moderate left justice before the election, and any attempt to renege on the deal will be met with a veto of all 2016 government funding resolutions. 

Ok. Obama shuts down the government. It'll be nice to have a shutdown without Obama whining in the WH Press Room everyday.

[Amenhotep Bakari-Sellers]

If this was a midterm, not a presidential election  it would be a good option, but Dems, unfortunately only have themselves to blame, they lost Udall, Landrieu & Braley in 2014, which should  of won. Dems have to beat Trump to fill vacancy.

[Stand With Israel. Crush Hamas]

Well, in that case, Obama should privately threaten to recess appoint Goodwin Liu if the senate doesn't commit to confirm a moderate left justice before the election, and any attempt to renege on the deal will be met with a veto of all 2016 government funding resolutions. 

Ok. Obama shuts down the government. It'll be nice to have a shutdown without Obama whining in the WH Press Room everyday.

I mean, seriously. A president threatening to hold the country hostage unless Congress waives their right to consent on a Supreme Court nominee? That's the kind of constitutional crisis we haven't seen in a very long time, and Obama would not only lose the PR battle - he might very well wind up destroying his legacy.

[Stand With Israel. Crush Hamas]

Well, in that case, Obama should privately threaten to recess appoint Goodwin Liu if the senate doesn't commit to confirm a moderate left justice before the election, and any attempt to renege on the deal will be met with a veto of all 2016 government funding resolutions. 

Ok. Obama shuts down the government. It'll be nice to have a shutdown without Obama whining in the WH Press Room everyday.

You have no leverage here.  Holding it open until after the election is the first along the road to where the process is so delegitimized 10 years from now that SCOTUS is treated like the House of Lords by whoever has federal control.  And that means the incumbent president will effectively be the final authority on constitutional law, with occasional input from an opposition congress.  That would be very bad for the country, but most of the American left would prefer that system to the status quo, so they welcome the dare.  It's why we badly need to show that moderate non-partisan judges can still be nominated and confirmed.

Well, then, let's see Obama nominate a moderate non-partisan judge. The Brian Sandoval suggestion is a good idea that splits the difference - long record of respected rulings in the courts, a vote to lock down Roe vs. Wade and Obergfell for a generation, but likely to keep Citizens United in place.

If he nominates a liberal ideologue, which he likely will, he is owed no more courtesy than the Democrats granted Robert Bork - or he granted John Roberts.

[Amenhotep Bakari-Sellers]

The Dems will only withhold consent on whats likely to play out anyways. No appropriations are gonna pass or Repeal of obamacare until 2017, when many parts of obamacare are up for renewal.

[Virginiá]

I mean, seriously. A president threatening to hold the country hostage unless Congress waives their right to consent on a Supreme Court nominee? That's the kind of constitutional crisis we haven't seen in a very long time, and Obama would not only lose the PR battle - he might very well wind up destroying his legacy.

Please, let's not act like Congress refusing to confirm anyone Obama nominates is A-OK. It's one thing for a vacancy to open up a few months before the new POTUS takes over, but it's only February now. Republicans need to do their job and work on confirming a reasonable candidate for the bench and not try to hold it hostage until America gets a new Republican president.

Neither Obama nor Congress should be obstructing anything here. Obama needs to nominate a reasonable justice and Congress needs to confirm them, assuming they are competent and fit for the job. They also need to understand that just because they control the Senate, does not give them carte blanche to demand a conservative justice, just like Democrats didn't demand liberal justices under Republican presidents in the recent past.

[Bacon King]

Well, in that case, Obama should privately threaten to recess appoint Goodwin Liu if the senate doesn't commit to confirm a moderate left justice before the election, and any attempt to renege on the deal will be met with a veto of all 2016 government funding resolutions. 

Ok. Obama shuts down the government. It'll be nice to have a shutdown without Obama whining in the WH Press Room everyday.

I mean, seriously. A president threatening to hold the country hostage unless Congress waives their right to consent on a Supreme Court nominee? That's the kind of constitutional crisis we haven't seen in a very long time, and Obama would not only lose the PR battle - he might very well wind up destroying his legacy.

Yeah because the Republican Congress has never held the nation's budget or credit limit hostage ever especially not for a stupid reason (like repealing statute that had been lawfully passed and upheld by the Supreme Court)