President Barack Obama may not have been able to get Merrick Garland on the Supreme Court through the normal process of Senate approval, but new reports say that a long-shot process could put Garland on the court for at least a few weeks.
According to The Washington Times, there will be a five-minute window on Tuesday afternoon between when the 114th Congress is gaveled out of session and the men and women of the 115th Congress take their oaths of office. That creates an “intersession recess” in which the president could appoint Garland for a year or until the Senate replaces him by confirming an appointee of President-elect Donald Trump.
Another theory, much more difficult to pull off but much more damaging, could put Garland on the court for life as a replacement for Antonin Scalia, with President-elect Donald Trump never being able to nominate his replacement.
Now, it’s worth pointing out that the gamble is a long-shot, even if some liberal activist groups are practically begging the president to do it. A 9-0 Supreme Court ruling in 2014 invalidated 2012 recess appointments made by the president while Congress was on break. However, that ruling acknowledged the difference between “intrasession” appointments, like the ones Obama made while Congress was still in session but on recess, and “intersession” appointments, made while Congress had officially been gaveled out of session.
There’s also the fact that, as law professor William G. Ross of Samford University points out, such an appointment would be “politically unwise and damaging to the prestige of the court.”
“It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Ross said.
And, such an appointment would only last for a year at the very longest, and probably nowhere near that long, meaning that unless the left could arrange for a bevy of cases important to the liberal agenda to appear before the court very quickly, the political blowback from such a move would be damaging for the Democrats — particularly in the Senate, where the Republicans could remove the minority party power of filibuster through the so-called “nuclear option.”
However, The Washington Post pointed to a much more damaging — if much more difficult — way to put Garland on the court for life. According to some theorists, 34 senators — those that ran this year — will be technically out of office for the five minutes in between the oath of office and the swearing-in of the new Congress.
Now, while the Democrats don’t have a majority in the Senate, they will have a majority of the senators who aren’t taking the oath — 34-30 over the Republicans, with two independents who caucus with the Democrats.
If Vice President Joe Biden, in his role as president of the Senate, were to put it into session during that time, a complicated series of events could potentially lead to Garland’s nomination being brought to the floor. If, the theory goes, only the senators who take the oath were able to vote on it, Garland could get a lifetime appointment.
It is another long shot, especially because the parliamentary battle of rules could lead to the Republicans reconsidering the vote once they have a majority. The Democrats, for their part, have already said they won’t be taking part in such a move.
“The Senate and our constitutional democracy would break down if there was a moment between the expiration of the old Congress and the start of the new Congress when either side could entertain these types of shenanigans,” said Joe Manley, former top aide to outgoing Senate Minority Leader Harry Reid. “Proponents argue that Trump is breaking norms left and right, so why would Democrats play by the old fashioned rules, customs and traditions. There is merit to this, of course, but this is a bridge too far.”
In fact, The Post went as far as to call the plan “liberal fan fiction.” However, we’ve seen these sorts of moves from the Obama administration and the Democrats before, particularly on recess appointments and the use of the “nuclear option” for judicial nominees. Could it happen again? We’ll know soon enough.
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