Despite the authority granted under Article II, Section 2 of the Constitution, Obama said he will not use the so-called “nuclear option” and make a recess appointment to replace Supreme Court Justice Antonin Scalia who died under suspicious circumstances over the weekend.
“Given that the Senate is currently in recess, we don’t expect the President to rush this through this week, but instead will do so in due time once the Senate returns from their recess,” said White House Principal Deputy Press Secretary Eric Schultz on Sunday. “At that point, we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the United States Constitution.”
It was widely speculated following Scalia’s death Obama would make a recess appointment to avoid opposition by Senate Republicans.
Democrats, led by Minority Leader Harry Reid, are demanding Senate Majority Leader Mitch McConnell take up a nominee posthaste. They are using Republican intransigence and a threat to filibuster suggested by Texas Senator and presidential candidate Ted Cruz to harm McConnell’s chances for reelection this year. Two other Republican candidates, Marco Rubio and Ben Carson, also said the replacement should be postponed until after the election.
“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said in a statement.
The Republican leadership points out that no president in over 80 years has acted upon a Supreme Court nomination within his final year in office.
Despite Schultz’s remark, Obama may make a recess appointment to circumvent Republicans. The Senate is in recess until noon on February 22 and the only way to call it back into session is with the concurrence of the Democrat Minority Leader, Harry Reid.
“Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session,” writes Glenn Reynolds of InstaPundit. The One Hundred Fifteenth United States Congress ends January 3, 2017.
Recess appointments to the judiciary are less common than appointments to the Executive Branch and undermine the spirit of the Constitution and the principles established by the founders.
“The framers wanted a president and the Senate to come to an accord on such appointments, including the need to compromise to achieve such goals,” writes legal scholar and professor of law at The George Washington University Law School, Jonathan Turley. “Obama, however, made it clear years ago that he was willing to go it alone when Congress failed to give him legislation or confirmations that he demanded. His unilateral actions have already produced a constitutional crisis over the fundamental guarantees of the separation of powers. This includes a unanimous 2014 decision of the Supreme Court that Obama violated the recess appointments clause in his circumvention of the Senate.”
Partisan bickering over the issue has provided an ideal opportunity for Obama to make a recess appointment and thus attempt to push through a litany of monumental judicial decisions, including decisions on the Second Amendment, Obamacare, abortion and immigration.