A Constitutional scholar is noting that even though the Republican-controlled U.S. Senate will not hold hearings on any nominee for the United States Supreme Court, President Barack Obama could break the law and put one on the bench anyway!
How? By using Congress’ recess to make appointments while Senators aren’t around to vote. Obama has argued before the Supreme Court that he has the power to fill vacancies during this time – including for the federal court at any time when there is not enough senators on the Senate floor to conduct business.
That means, according to Obama’s own set of rules, the appointment of liberal Judge Merrick Garland could happen, and he would become a Supreme Court Justice without the Senate’s confirmation.
This is horrible! As Ken Klulowksi reports, liberal legal groups are floating trial balloons about this possible White House strategy:
Increasingly desperate to take control of the Scalia seat, Democrats are now resorting to extreme legal arguments.
Common Cause is a stridently liberal advocacy group. One of its board members, Gregory Diskant, is now arguing that the Constitution empowers Obama to appoint Garland to the High Court without any vote in the U.S. Senate.
Article II, Section 2 of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
For 227 years, each of the 112 justices to serve on the Supreme Court—along with thousands of federal judges on the lower courts—was confirmed by a vote of the Senate as the exclusive means by which the Senate exercises its power of “advice and consent.”
But according to a Washington Post op-ed authored by Diskant, the Appointments Clause of the Constitution grants the president two separate powers, one to “nominate,” and the other to “appoint.”
Diskant claims that when the Senate does not vote up or down on a judicial nominee for a “reasonable amount of time,” which Diskant believes for some conveniently arbitrary reason to be 90 days, “It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent.”
So long as the Senate was given a “reasonable opportunity to provide advice and consent,” Diskant argues that senators forfeit their constitutional power, so Obama can unilaterally appoint Garland to a lifetime position on the nation’s highest court.
Diskant assures readers that this tectonic shift in constitutional power “should not be viewed as a constitutional crisis,” and is instead merely a “healthy dispute between the president and the Senate about the meaning of the Constitution.”
Although such a thing has never once happened in the history of the United States, Diskant again assures readers that, “This kind of thing has happened before.” (He does not provide examples of anything relevant.)
While it is plausible to regard this op-ed as the radical position of a single lawyer—who cleverly tries to mask this extreme argument by saying at the outset only that “it is possible to read” the Appointments Clause this way, not that it must be read this way—there is a serious possibility that he is floating a trial balloon for the White House, gauging the public’s willingness to accept such a fundamental change in the Constitution’s separation of powers and system of checks and balances.
Especially since this argument is strikingly similar to Obama’s argument regarding his own recess-appointment power. He argued before the Supreme Court he has power to fill vacancies during recesses of the Senate—including those for federal courts—at any moment when there is not a sufficient number of senators on the Senate floor to conduct business.
In other words, Obama argued that on almost any night at 3AM in the morning, he could set his alarm clock to wake up, and fill any vacancy among senior executive-branch positions, or any federal court.
In NLRB v. Noel Canning, the Supreme Court in 2014 unanimously rejected Obama’s position with a 9-0 ruling. The Court held that the power to appoint is jointly held by the president and the Senate. Only the president can put forward a name, and only the Senate can install that nominee in office.
It appears possible Obama may be considering going that route again.
The Founding Fathers would object to a President acting like a tyrant and ignoring the Constitution in this way. The Senate has made it clear that confirmation hearings won’t happen, but Obama is acting like a King. This is outrageous!
What do you think about Obama’s possible plan to appoint a Supreme Court Justice, and take control of the court, during a Senate recess? Please leave us a comment (below) and tell us.