equals choosing not to exercise it.

BUT, the sitting president has a right and duty to appoint justices during his term, and if the Senate refuses to act within the term, the president should proceed to perform his duty...

This interpretation would also fix the serious problem that has arisen of one party denying the president of an opposing party his nominations with the intention of passing them on to a new president of their own party.

Thanks, Babylonsister. This was really interesting to read.

to fill vacancies arising during their presidency. Do you think the president violates some Constitutional duty as a result?

Of course not. There is a Constitutional expectation that the president will offer nominees to fill vacancies on the Supreme Court, the lower courts, ambassadors, cabinet posts and any one of the 1000 other presidentially appointed offices that require Senate confirmation. But not an enforceable duty or obligation. (And, yes, per the Constitution, the appointments clause applies with equal measure to all of those offices).

This idea that the President can "appoint" someone to an office that requires Senate confirmation without getting such confirmation (and without the conditions being met for a recess appointment) is totally absurd. The "appointment" occurs, by law, when the President signs and conveys to the nominee, after his/her confirmation, a "commission" to serve. It is only after the commission is signed appointing the nominee that he/she can take the oath of office and begin to serve.

By the way, the fact that there is a recess appointment clause in the Constitution is further evidence that the article's author doesn't know what he's talking about. If the President could appoint someone without Senate confirmation when Congress is in session but not acting, there would be no need for a recess appointment clause allowing the President to appoint someone without confirmation when Congress doesn't act because they're out of session.

interpretation that worked acceptably before the GOP's determined to block this nomination an entire year until this president has left office. This is new. This is a new, very serious problem that will force the courts to come up with a solution.

Though it's of course true that vacancies for lesser offices do open up all through a term and may not all be filled, that is not true for seats on the Supreme Court. This situation is very different. Republicans have introduced a big change that will itself cause/force further change. Unless they back off.

Again the Constitution doesn't single out the Supreme Court for different treatment under the appointments clause than other positions. And since the number of justices is set by congress and the court has operated at less than full strength in the past, it is hard to make the case that having a lengthy vacancy on the court is more significant than having a cabinet post vacant or an ambassadorship.

inclined to think (as usual, and I've certainly been wrong about this exact thing before) that problems have finally reached the stage that they are likely to be be dealt with. So much depends on this election, possible/totally impossible -- for now.

The past does not predict the future, of course, and a decade feels like a long time to most of us, instead of the too brief time for big change that it typically is. I remember an expert in such things telling me back around 2009 or so that the expected delay for a second possibility for national healthcare reform was about the (?) 17 years or so that it turned out to be. He was pleased at how events once again seemed to verify a big time pattern that had been noted long before.

We'll see. In time.

yell on shaky ground. Goes for the rest of the nominations to the lower courts!

The President exercised his power by sending a nomination to the Senate. If the Senate approves the nomination, the "appointment" step takes place when the President signs the appointee's "commission".

Diskant's article is the work of someone who should stick to his specialty, which isn't constitutional law.

The President cannot make a recess appointment to the SCOTUS.

But there is no recess of sufficient length to allow for recess appointments at the moment, nor is it likely that there will be one between now and the start of the next Congress

Supreme Court is not like a cabinet post.

Consult your copy of the Constitution:

"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."

"All" means all. And, indeed, three supreme court justices: Brennan, Warren, and Stewart were first named to the Court via the recess appointment route (and then were subsequently confirmed to lifetime terms).

Moreover, recess appointments have been used to appoint Article III judges over 300 times, beginning with George Washington's use of the recess appointment power to appoint nine federal judges during his time in office.

I can see some benefit in a temporary appointment - we would have a majority until the appointment ended and could no doubt make some really needed changes.

It would expire at the end of Congress' term.

of it.

It's one that he would likely WIN, however, because it would go to a Supreme Court without a fourth conservative justice (scalia being dead is the reason this would be happening, after all) and Beyers and possibly Kennedy would side with the liberals here, and tell the Senate 'yeah, if you want to do your job you would have such and such number of days to issue advice and consent, and if you don't the President gets his nominee'...something to that effect. Which would kick it back into the Senate, which would just say no to this guy, and then the process would begin again, and again, until next january.

Yes, the president probably win that legal argument. Seeing as it would be mostly a phyrric victory anyway, there's not much point in wasting the resources OR the political capital when instead, he can just leave the Republican Senate to do what they do best and use that as a very heavy bludgeon come general election campaign time. I don't agree with everything this President has done in terms of policy positioning, but I'll give him credit for being Not Stupid. It's an improvement over the last occupant, at least.

The liberals on the Court aren't partisan hacks as you seem to believe. They know that unless and until the Senate confirms a nominee, the President can't issue the required "commission" necessary for the administration of the oath of office. (Which is why this is all entirely hypothetical, since Obama clearly understands what the Constitution requires as well). Just as the vote rejecting Obama's NLRB recess appointments was unanimous, so too would the vote on this issue.

Last edited Sat Apr 9, 2016, 01:54 PM - Edit history (1)

One of the most shallow legal arguments I've seen in a while. Diskant and I attended the same law school (Columbia) just a few years apart and his article is an embarrassment to our alma mater.

To start with, there are written records of the discussions that led to the advice and consent clause. Those records show that the framers considered and expressly rejected an approach under which Presidential appointments would become effective unless the Senate affirmatively acted to "veto" them. Instead, the framers chose to adopt the "Massachusetts" approach -- an approach that was well known as allowing nominations to become effective only if affirmatively approved and as allowing that approval to be withheld by simply not voting at all.

Beyond the historical record that undermines Diskant's argument, there is the simple practical consideration: the advise and consent clause applies not just to Supreme Court nominations but to literally a 1000+ positions that are filled by the President with the advice and consent of the Senate. If he is right that the Senate has a duty to affirmatively act (by approving or disapproving) a nomination, then it would also follow that the President has an affirmative duty to make nominations. But vacancies often go unfilled for extended periods of time. Is there some previously unknown Constitutional standard by which the Senate can usurp the Presidential power to nominate if the President fails to act within some period of time? What period of time? And what about those 1000+ other nominations. What is the standard of time before Senate inaction on each of those is deemed to be a waiver?

Diskant's nonsensical argument would open the door for the courts to have to rule on every single presidential appointment that isn't acted on by some arbitrary deadline that the courts would have to set since its not found anywhere in the Constitution or statute. Its absurd.

1 those records are NOT the constitution, so to consider them is not required.
2 on none of those 1000s did they refuse to hold hearings with the FLAWED REASONING: "During the last year of YOUR term, your nominations are of no value, it's democratic, just and fair to wait for the NEXT election."
That's pure racism: the black president has no right to nominate in his last year but the white one does??
Aside from everything else: THAT is not in the Constitution!!!!!

despite your assertion that you know what everyone else believes.

Whether you believe I went to Columbia or not, it's pretty clear that you (1) didn't go to law school; (2) went to a very bad law school; or (3) went to a good law school and slept through three years.

Just as the legislative history of a statute can be and is used as a interpretive tool when the language of the statute does not unambiguously resolve an issue, the history of the deliberations of the framers of the Constitution can be and are used as a interprettive tool when the language of the Constitution does not unambiguously resolve an issue.

And the President did nominate someone. The Senate is refusing to confirm that nominee. The Constitutional doesn't expressly require meetings, hearings, or even a vote on a Presidential nominee. Throughout history, numerous presidential nominations have expired or been withdrawn because the Senate failed to act on them, just as many Presidents have failed to nominate anyone to fill vacancies that exist during the end of their terms of office. The fact that this situation involves a Supreme Court vacancy makes it unusual, but the Constitution doesn't distinguish between Supreme Court nominees and ambassadors, other public Ministers and Councils, "and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law."

Despite your beliefs to the contrary, these issues aren't particularly difficult or controversial, and wholly consistent with checks and balances enforced by strict separation of powers.

Simply, there's a reason why Obama hasn't tried to sit Garland without Senate confirmation or an appropriate Congressional recess, and if he tried, he would be quickly smacked down by a likely unanimous SCOTUS, just like what occurred with his NLRB recess appointment.

http://www.scotusblog.com/2014/06/court-strikes-down-recess-appointments-in-plain-english/

Obama has every right to nominate whomever he wants for a vacancy on the Court. Congress need not act on such nominee, and its reasons for inaction are totally irrelevant. In fact, Democrats have even advocated for precisely the same thing as the Republicans are now doing, just ask ask Vice-Present, and former Senator, Biden.

People who even think this is a good idea should think about that.

The Senate has separate powers. It is not just this sitting court that won't contravene them - I cannot imagine ANY court contravening them.

The SC has spoken, 9-0. It has said what it won't do.

Or only Roberts? If it's the latter do you think this would work. If the former

You could swear in the President or any Justice if that's who they wanted.

And if there is one thing that is certain, it is that President Obama, who apparently is a better Constitutional scholar than Mr. Diskant (who is a litigator specializing in complex commercial matters, not constitutional law),won't be signing a commission for a supreme court nominee (or any other nominee) that hasn't received the required confirmation of the Senate.

The blatant absurdity of that threw a shadow over the whole article.

What examples might the author be considering outrageous?

TOTALLY unacceptable

"Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior."

Name one "outrageous" thing the Democrats have done, Gregory.

I can wait.

Only one party has become extremists, radical and outrageous...the republican party.

and the msm is complicit, over and over again, in that lie.


Tikki

This Dems = Repubs has to stop!

Save them the political backlash of being seen as once again not doing their jobs. They have to put up a front to appease their more radical bagger base, and tea bagger fellow reps. But Merrick is a perfectly acceptable corporate leaning justice for them who even seems unclear on his stance on Citizens United.

AND REPUBLICANS CAN FOLLOW THE "YELLOW BRICK ROAD" OR FIND "STREETS PAVED WITH GOLD" IN THE AFTERLIFE! [appoint or kill Xi, immediately, fuck-ups... we r the 5th column satellites in China!]

His nomination was an insult to the left.

President Obama always seems to outsmart the GOP.

because there is no way Obama will try it.

And there is no way Garland would accept an "appointment" without confirmation.

I read a A March 2015 CRS report (pdf) as indicating that a recess appointment to the Supreme Court would probably expire at the end of the first session of the 115th Congress in January 2018

The Supreme Court term begins in October and winds up in June or July. An appointment today probably wouldn't affect the 2015/2016 term, because the appointee was not present for the case arguments. It would affect the 2016/2017 term. It probably wouldn't affect the 2017/2018 term much because the non-controversial cases would be handled first and the controversial ones would be settled after the appointment ended

The argument advanced in this article is precisely what the SC said it would not do in that case, which is get into the inner dealings of the Senate.

No power can force the Senate to hold confirmation hearings. Indeed, in the past they have rejected some nominations without hearings, and there weren't always hearings.

This is literally, totally, bizarre.

The flipside of this argument is that if the President doesn't make a nomination quickly enough, then the Senate may go ahead and appoint its own nominee. Which is obvious nonsense.

let the courts decide if the Senate can do this or not.

foolish condescension for my efforts. If the Republicans refuse to meet their Constitutiinal obligations, then the President should petition the Supreme Court to swear in his nominee. It could not have been the intent of the Founding Father's to have a co-equal branch of government put out of business by another branch of government. If the Republicans refuse to hold hearings foe a Democratic President on all levels of the federal court system, then the Democrats will do the same and the Judicial Branch will die on the vine. Force Roberts to weigh in. Exact a price.

IF Obama were to exercise this (not likely) AND it was found to be legal and Constitutional (also not likely), it would set a precedent.

I can absolutely guarantee you that the Republicans would leverage this precedent somewhere down the road and everyone here would rapidly achieve orbit.

A good solid test is "how would you react if the roles were reversed?".

Which of course may be tied, but there is no lower court that has heard this question.