Private: Supreme Court Recess Appointment for Scalia Replacement?

by Victor Williams, clinical assistant professor of law, Catholic University of America Columbus School of Law

At noon last Friday, the Senate began a 10-day recess without any of the usual pro-forma sessions scheduled. No Senators were left home alone to gavel the Senate open and closed in sham sessions during the 10-day vacation. According to the formal House-Senate joint adjournment resolution, the Senate will not return until 3:00 p.m. on Monday, February 22. An uninterrupted 10-day break is exactly the minimum recess period established by the Supreme Court's NLRB v. Noel Canning ruling during which the president may exercise his recess appointment power. Whether intended or not, the GOP-controlled Senate has left Barack Obama a wide open appointment window. But it will be shut on Monday afternoon.

When conservative commenters learned of the open window, they were not pleased. But even Senate GOP leadership aides acknowledge the unusual recess opportunity would allow Obama to make an immediate Supreme Court appointment: "He could appoint [Vice President Joe] Biden tonight if he wanted to.”

Will President Obama immediately fill the vacant seat on the nation's highest judicial bench? If so, he would retain authority and obligation to also nominate someone (the recess appointee or another person) for a life-tenured appointment. Earl Warren, William Brennan and Potter Stewart each served as recess appointees on the Supreme Court while they waited for Senate confirmation to tenured positions. And will Obama use the 10-day recess to fill the many other empty executive, regulatory and judicial positions? He has a unique opportunity to ensure a fully staffed government for his final year in office.

Article II, Section 2, Clause 3's Common-Sense Appointment Alternative

Article II, Section 2, Clause 3 charges the Executive to keep the government functioning when the Senate is not attendant to its confirmation duties. It is a common sense provision meant to ensure a fully-functioning national government. The Constitution's Framers intended for our national government to actually work.

Over 300 federal judges, including 12 Supreme Court justices, have been recess commissioned in our republic's history. I have supported the recess appointment authority of the past four presidents regardless of partisan affiliation and regardless of my own changing partisan allegiance over the years. (As I remain a dedicated, common sense constitutionalist, I find that the major parties keep leaving me.) Indeed, I was the only law professor in the nation to support President Obama's NLRB recess appointments with a Supreme Court amicus brief in the Noel Canning adjudication. I did so in support of the appointment authority of all future presidents.  

It is now time for Obama to act to protect the functioning of the Supreme Court and to support the appointment discretion of future presidents. With the stroke of a pen on a recess commission, Obama should fill the Antonin Scalia vacancy "until the End of the Senate's next session." If Senate custom holds, the appointment would last until December 2017. Obama should also fully staff his administration for the remainder of his term with other executive and regulatory recess appointments. 

But Obama must be bold. The opportunity will not come again. The GOP-controlled Senate is certain to reinstitute the pro-forma sessions for every recess in the future. Obama would do well to get in touch with his "inner Trump." It is not difficult to imagine Donald Trump simply midnight-tweeting a recess commission to his selected Supreme Court appointee: "You're hired." Would Trump not have used the option of a recess appointment to pre-negotiate an up-or-down Senate vote, “the art of the confirmation deal?”

Presumptive 10-day Recess Rule

I have been critical of the convoluted recess rule established by Noel Canning. Justice Steven Breyer’s historical analysis used to justify the creation of the strange 10-day minimum "presumptive" limitation conjoined with a three-day "absolute" recess rule was faulty at best. In his dissenting concurrence and for his own reasons, Justice Scalia described Breyer's made-up recess minimums as "judicial fabrication of vague, un-administrable limits on the recess-appointment power . . . that overstep the judicial role."

But rules are rules, even at recess. Obama thus has a one-time opportunity to fill Scalia's now empty seat on the highest bench and make other temporary governmental postings during the Senate's ongoing 10-day recess.

Sunday Precedent:  Bush’s Recess Appointment of Judge William Pryor in a 10-day Recess

Some naysayers contend that Senate practice has not counted Sundays in its recess-time-period calculations. While the Noel Canning ruling referenced the Sunday exclusion in analysis of a short, 3-day recess (over a long weekend), neither Sundays nor holidays should be excluded from meeting Steve Beyer’s significantly longer "presumptive" 10-day recess minimum.

During a 10-day Senate recess in February 2004 (covering exactly the same Presidents’ Day holiday period as now), George W. Bush recess appointed Eleventh Circuit Judge William Pryor. On Thursday evening, February 12, 2004, the Senate adjourned for 10 days for the federal holiday until Monday, February 23. The recess encompassed only five business days, a three-day holiday weekend, and then another two-day weekend. The Eleventh Circuit rejected challenges to the Pryor appointment.

Who is now willing to argue that Judge Pryor’s 18 months of judicial service while a recess appointee in 2004-2005 was illegitimate just because that 10-day recess included two Sundays? Judge Pryor now also sits on a Steven Breyer pet project – the U.S. Sentencing Commission.

Any subsequent litigation challenging a high court recess appointment should be judged a nonjusticiable, political question. Surely the Supreme Court would not insist on having the last word in the political appointment processes for its own membership. The natural law maxim controls: nemo judex in sua causa (no one should judge their own case or interested cause).

An immediate recess appointment would guarantee that our Supreme Court is fully functional until the end of 2017. Americans want a government that actually works as hard and as well as they do. And they want a president strong enough to ensure that it does so.