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Constitutionality of Appointment of a Successor

 
 
gollum
 
Reply Wed 17 Feb, 2016 10:30 am
Does President Obama have the power to appoint (not nominate) Sacalia's successor during the U.S. Senate's next recess, with that appointment to end at the end of 2016?
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puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 05:01 am
@gollum,
Presidents have a long history of making recess appointments under Article II, Section 2. Such appointments last until the end of the next full session of the Senate, with each full session lasting a year. Since the current session runs from January 11 through December 16, the duration of such an appointment would be through the end of 2017. George Washington made two such appointments:

https://en.wikipedia.org/wiki/Appointment_and_confirmation_to_the_Supreme_Court_of_the_United_States#Recess_appointments

The next scheduled Senate recess is the Easter recess, March 21 - April 1:

http://democrats.senate.gov/2016-senate-calendar-114th-second-session/#.Vs2CBKdlDfo

But the Senate can instead remain technically open through pro forma sessions. Democrats in the 110th Senate prevented George Bush from making any recess appointments using this means. Obama recently attempted to make several recess appointments (not S.C. justices) during the minute window between the renewal of pro forma sessions. However, "on June 26, 2014 the Supreme Court of the United States determined that the President had improperly used his presidential power to make these appointments stating that while the Senate was in recess punctuated by pro forma sessions the period of time between the sessions was not long enough to invoke such power."

https://en.wikipedia.org/wiki/Pro_forma#Government

However, Congress can act to reject a recess appointment, removing him immediately. George Washington's second recess appointment, of John Rutledge to the position of Chief Justice of the Supreme Court in June of 1795 took effect immediately. In December, after his formal nomination, the Senate rejected him, thus terminating his appointment.

https://en.wikipedia.org/wiki/John_Rutledge#Chief_Justice_of_the_Supreme_Court

Presumably, once a recess appointment has been made, upon return from recess, the Senate could hold a vote and by rejection, remove the appointment.
puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 06:15 am
@puzzledperson,
A modification of my original answer. I wrote:

"Presumably, once a recess appointment has been made, upon return from recess, the Senate could hold a vote and by rejection, remove the appointment."

I based this upon the case of John Rutledge. Many accounts make it sound as though his appointment was terminated by the Senate. For example:

"When the Senate convened in December, it promptly voted down his nomination. Rutledge thus became the first rejected Supreme Court nominee and the only one among the fifteen who would gain their offices through recess appointments not to be subsequently confirmed."

http://www.senate.gov/artandhistory/history/minute/A_Chief_Justice_Rejected.htm

However, another Senate document, prepared by the Congressional Research Service and titled "Recess Appointments: Frequently Asked Questions" has this:

"What Happens If the Nomination of a Recess Appointee Is Rejected? Rejection by the Senate does not end the recess appointment."

http://www.senate.gov/reference/resources/pdf/RS21308.pdf

And in fact, the logic of making recess appointments as well as the logic of blocking them with pro forma sessions, seems to suggest that the Senate cannot unilaterally terminate the appointment of a recess appointee. It may be that the Washington administration used the Senate rejection of Rutledge to justify an executive termination.

It's difficult to find a detailed description of Rutledge's termination online. This is a point which deserves additional clarification.
parados
 
  1  
Reply Wed 24 Feb, 2016 09:02 am
@puzzledperson,
Recess appointments last through the end of the current Congress. If the person was nominated the Senate can still consider that nomination while the person holds office through the recess appointment. If they reject the nomination the recess appointment still lasts until the end of the current Congress.

The person that was appointed can leave the post at the end of the current congress or be nominated and confirmed by the next Senate.

If Obama makes a recess appointment before October, his appointment would hold the job from Oct through Dec and without being confirmed by the Senate the Court would then return to 8 justices. My feeling is that a recess appointment would end up being very disruptive to the Court unless the Democrats take back the Senate and the GOP refuses to filibuster in January. My take on the GOP is that they would filibuster any recess appointment up for nomination even if they didn't hold the majority.
puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 09:32 am
@parados,
Article II, Section 2 of the U.S. Constitution provides that:

"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."

I don't see anything about the end of the current Congress, though you might be right. (If so, and you can establish that through a reference, it would be appreciated.)

For purposes of recess appointments, a session ends with the sine diem,which is currently targeted for December 16. So that would be the end of the current session, not the end of the "next" session. The scheduled recesses (as opposed to the sine diem recess) are intra-session.

However, Obama is the sitting president until the next president is sworn into office. Inauguration day 2017 is January 20. The first scheduled recess of the Senate is MLK Day, January 18. If Obama managed to make an intra-session recess appointment on that day, his appointee would serve until sine diem of the next session after that, which would be sometime in December 2018.
parados
 
  2  
Reply Wed 24 Feb, 2016 11:01 am
@puzzledperson,
The session of C0ngress is a 2 year term. I believe we are currently in the 115th Congress. (EDIT- The session is considered per year so it would be the end of the next year after the appointment.)
http://www.senate.gov/reference/Index/Sessions.htm

Yes, if Obama waited until January to make a recess appointment, the person would serve until Dec 2018. In doing so, the Supreme Court would be only 8 justices for the rest of this term and the first 3 months of next term. The next President could nominate the person that was appointed.

That suddenly creates a whole new conundrum where the court is filled with recess appointments that would expire every 2 years if the Senate can't ever consider and approve regular nominations.
gollum
 
  1  
Reply Wed 24 Feb, 2016 07:29 pm
@parados,
parados and puzzledperson-

Thank you.

I wonder why none of the newspapers and TV stations have discussed the possibility of Pres. Obama making a recess appointment to replace Scalia on the U.S. Supreme Court.
cicerone imposter
 
  1  
Reply Wed 24 Feb, 2016 07:46 pm
@parados,
The president has the Constitutional right to nominate a SC judge. Whether the Senate wishes to act on it is another issue.
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puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 11:37 pm
@parados,
I can see some edits/corrections in your post. But just to be clear, it's the second session of the 114th for the Senate this year. See for example the Senate schedule linked to in my first reply of the thread. Note also that sessions don't run through a calendar year but only through the sine diem, which for this year is tentatively scheduled for December 16, though that's only a target and it could change. So Obama could (for example) make a Christmas Day appointment. There are also lots of intra-session recesses left this year (see the Senate schedule) where he could theoretically appoint.

I still wish I had the full story on Rutledge, since he's the only Supreme Court recess appointment who was rejected by the Senate after he had served six months, and his replacement was confirmed three months later.

0 Replies
 
puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 11:43 pm
@gollum,
Fox News had a story as early as February 13. The Washington Post has a story from the 23rd. Lots of ezines too. Google "Obama recess appointment Scalia".
0 Replies
 
puzzledperson
 
  1  
Reply Wed 24 Feb, 2016 11:47 pm
@gollum,
Looks like Obama had a window already, but failed to take advantage of it.

http://www.foxnews.com/politics/2016/02/13/obama-has-rare-parliamentary-window-to-make-recess-appointment-to-succeed-scalia.html
0 Replies
 
 

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