SCOTUS confirmation games: Playing the race card, with an empty recess appointment threat

President Obama has promised to nominate someone relatively soon for a lifetime seat on the Supreme Court made vacant by Justice Antonin Scalia’s passing. President Obama hopes either to weaken the Senate majority’s resolve, which is to let the American voters decide who shall fill the vacancy, or to play politics with the issue. Alas, partisans and race hustlers have already played the race card by claiming that the only reason the Senate majority might withhold its consent is that Obama is black. Just imagine what equally absurd and offensive arguments will be advanced if the President’s nominee fits any racial, ethnic, gender, religious, or other “non-privileged” status.

Unfortunately, the confirmation games don’t end there. In press conferences over the past few weeks, President Obama and his aides have refused to rule out a recess appointment in the future if the Senate does not act on his nominee. That might be taken as a threat: if the Senate majority does not confirm whomever he nominates, he could recess appoint someone even less to the majority’s liking.

Perhaps it is meant a threat, albeit a silly one. Assuming there is a sufficiently long Senate recess for the President to invoke that power, he may indeed make recess appointments to the federal bench. Over 300 judicial recess appointments have been made over two centuries, including several to the Supreme Court. But senators, and the public, should not worry about such use in this instance. There are several reasons why that is so.

First, and foremost, Senate Majority Leader Mitch McConnell has said that he will ensure that the Senate does not take any long intra-session recesses this year that would permit a recess appointment. In NLRB v. Canning (2014), the Supreme Court got many things wrong, but it correctly held that the President can’t unilaterally decide when the Senate is in a recess. The Court held that the Senate is in session when it says it is in session, as long as its rules allow it to conduct business, including during pro-forma sessions like those at issue in the Canning case. That provides the Senate majority a road map to prevent any intra-session recess appointments to the Supreme Court this year if it so chooses.

Yet some also are worried that the President can make recess appointments between sessions, which are known as inter-session recess appointments, no matter how short the duration of the recess. According to this theory, there will necessarily be a new session while Obama is President since the new Congress begins on January 3 at noon. This theory has several flaws, some of which are too tedious to address here, except to note that it is dubious that a short inter-session recess is sufficient under the reasoning of Canning.

But there is a more practical reason to think President Obama would not attempt a recess appointment in early January 2017, even if he had the power to make one then. If someone from his party was elected president, especially Secretary Clinton, they might form an agreement regarding who to nominate for the life-time seat, and they are even more likely to agree on which Senate was more appropriate to consider that nomination.

In contrast, a new Republican president would nominate someone soon after being sworn in on January 21, and the confirmation and appointment of such nominee would oust any recess appointee—regardless of how long a recess appointment could last. An inter-session recess appointment usually lasts until the end of the session that begins shortly after the appointment—roughly a year in modern times, but that time is automatically cut short with the appointment of a confirmed candidate.

Thus, it would be petty to try to recess appoint someone who might serve on the High Court for only a couple of months, a time when few of his or her votes would likely matter. Indeed, individual justices could make a high proportion of important votes irrelevant by holding concurring or dissenting opinions in cases that might otherwise be ready to be issued. And any recess appointment during a brief inter-session recess would be litigated and probably struck down, even if the recusals might be interesting if it made it to the High Court.

The only scenario that might present an arguable incentive for President Obama to attempt a recess appointment to the Supreme Court in January is as follows: a Republican is elected president but the Senate majority flips—and the new majority is willing to create a long vacancy from roughly January 3 to January 21 to allow Obama to make a recess appointment and then deny consent to any nominee made by the new president until the recess appointment expires. Yet, that plan could be blocked by the House of Representatives that must consent to any recess of the Senate for more than three days. See U.S. Const. art. I, sec. 5, cl. 4.

Thus, the recess appointment “threat” is exposed as a pretty empty one. Unfortunately, the race baiting is almost certain to continue. It has been sadly effective in some situations. Whatever the political branches do, however, let’s hope that tactic is not rewarded with something as important as a life-time Supreme Court appointment.