In the aftermath of a controversial presidential election and an even more controversial stalled Supreme Court nomination, many believe that President Obama should get his man on the bench before Donald Trump’s inauguration in in January. Is it possible? Could President Obama fill the Supreme Court vacancy with Merrick Garland before January 20? Is there any way for the sitting POTUS to prevent the president elect from getting his choice onto the SCOTUS instead?
As Rolling Stone reports, the chances of President Obama filling the Supreme Court vacancy are pretty low. However, the current Supreme Court situation is completely unprecedented in U.S. history, so it could be begging for an unprecedented fix.
The U.S. Supreme Court has had a vacancy since the untimely and unexpected death of Justice Antonin Scalia in February. President Obama attempted to do his due diligence and exercise his right and responsibility as POTUS by nominating a replacement. That prospective justice is Merrick Garland, and he’s been waiting for a Senate hearing to confirm or deny his nomination for 250 days, the longest (by far) of any Supreme Court nominee in U.S. history.
In fact, the prospective Supreme Court justice that comes closest to Garland’s epic wait was Louis Brandeis back in 1916, and he only waited 125 days.
The reason that Garland hasn’t gotten his Senate hearing is very simple, too. Senate Republicans have simply refused to consider the nominee. They have stonewalled both President Obama and the established law and tradition of the land by utterly refusing to do their jobs. Their reason? As The Chicago Tribune reports, Senate Republicans have refused a hearing to President Obama’s Supreme Court nominee for a number of reasons, but the primary one seemed to be related to their political futures.
In a nutshell, Republican politicians were worried that if they came off as “weak” regarding Obama’s SCOTUS nominee (a moderate), they might lose their November re-election bids to more conservative challengers. That fear was reportedly greater than the fear that they would lose their Supreme Court advantage if Hillary Clinton won the general election.
After all, Antonin Scalia was a die-hard conservative. If Clinton had won, she surely would have tapped a liberal Supreme Court Justice to replace him, shifting the balance of power in the Supreme Court. Now that Trump has pulled off an unexpected win, the nation can almost certainly expect Scalia’s replacement to be much more conservative than Merrick Garland.
Unless, President Obama can get Garland on the bench before he leaves office.
According to a Washington Post opinion piece, Republicans in the Senate have handed over their rights to weigh in on Obama’s SCOTUS choice by refusing to do their jobs. However, there is no precedent in American history that would allow President Obama to unilaterally put a justice on the Supreme Court. If he tried, he would almost certainly fail, not to mention kick up a whole lot of proverbial dust in the process.
However, Obama could presumably put Merrick Garland on the bench as a so-called “recess appointment.” That would give Garland a place on the Supreme Court between Congressional sessions.
“The difficulty with a recess appointment is that he would only have that position on the Supreme Court for a very limited amount of time. He’d be on the Court for a year and it doesn’t serve the public, the Court or justice to put anyone on the bench on the Supreme Court [for such a short amount of time.]”
If President Obama tries to go that route, he would need to make his move at the beginning of January, between the Senate sessions. If he did so, he could ensure that his nominee was on the Supreme Court and influencing some of the potentially precedent-changing cases they will be hearing next session.
Some Americans are actively petitioning Obama to use his “recess appointment” trump card.
As Heritage.org reports, the Supreme Court currently has cases regarding executive power, separation of church and state, property rights, and lethal injection (among others) on its docket for the year.
As New Republic reports. it’s highly unlikely that President Obama will fiddle with the Supreme Court before he leaves office, as much as liberals may wish that he would. However, he most certainly could, and he could do so while remaining within the confines of the law, at least if he opts for a recess appointment.
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.”
If President Obama does choose to put Merrick Garland on the Supreme Court in early January, he will only have the opportunity to do so because the Republican-controlled Senate refused to give his nominee a hearing for an unprecedented amount of time.
What do you think? Do you think that President Obama should use the remainder of his authority to install his moderate Supreme Court justice on the bench for a year, or do you think that would be an unethical, divisive move?
[Featured Image by Ververidis Vasilis/Shutterstock]