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Supreme Court Showdown: How President Obama Could Still Fill That Vacant Seat To Thwart Trump

By Patricia Ramirez
Published on: 11:37 PST, Jan 2, 2017

With all efforts to stop a Trump presidency seemingly exhausted, President Obama still has one final shot to get his blocked Supreme Court nominee on the bench. Following the death of Justice Antonin Scalia on February 13, 2016, President Obama attempted to fill the notoriously conservative justice’s vacant seat with U.S. Court of Appeals Judge Merrick Garland. In a virtually unprecedented move, the Republican-controlled U.S. Senate blocked Obama’s Supreme Court nominee, refusing even to hold a vote on Garland’s appointment.

As The Washington Times reports, President Obama slammed the Senate’s refusal to consider his Supreme Court nominee during what they called his “lame duck presidency” back in October, over 200 days after Garland was appointed.

“In a city of self-inflicted wounds, this one is more dangerous and less defensible than most. This is about the obstruction of a broken Republican-led Congress.”

Still, the Republican-dominated Senate refused to fill the empty spot on the 4-4 split Supreme Court during and election year, vowing to wait for the next POTUS to make their appointment and sticking to that vow.

It was a gamble that paid off heartily for the Republicans. For months, Hillary Clinton was believed to be a shoe-in for the White House, meaning that she would have been filling the Supreme Court vacancy. Donald Trump’s Election Day upset was a game changer; suddenly the Republicans had the clear upper hand. With a right-wing controlled White House, House and Senate, a conservative justice seems a sure thing, and it’s something that President-elect Trump has promised repeatedly throughout his fledgling political career.

However, it is still possible that President Obama can steal that vacant Supreme Court seat away from the Trump administration. At least for a little while. While it appears unlikely that Obama will try to thwart Trump via a so-called “recess appointment” to the Supreme Court, it’s possible that he may try. Despite post-election vows of unity between the President-elect and outgoing President Obama, Trump has become increasingly critical of Obama’s last minute executive power plays.

From pardoning hundreds of federal inmates to the U.S. refusing to use its veto power to help Israel out of a U.N. jam to designating new protected national monuments in Utah and Nevada, Obama appears willing to throw as much shade at his replacement as possible on his way out the door.

And a recess appointment of Merrick Garland to the Supreme Court would do just that.

As The Washington Times reports, if President Obama tackles the Supreme Court, it will have to happen on Tuesday, and it will have to happen quick. Just before noon, Obama will have a five-minute window between the end of the 114th Congress’ session and the beginning of the 115th Congress.

During that brief and unavoidable intercession recess, Obama will have the executive authority to appoint Merrick Garland to the vacant Supreme Court seat. Without a Senate hearing.

Anti-Trump Americans have been hounding Obama since Trump’s unexpected November victory to use his power to thrust Garland onto the bench, at least for a year (the length of a recess appointment), in an attempt to thwart the Trump agenda. So far, Obama hasn’t said that he would or that he’s even considering it. However, he has also not said that he isn’t considering a recess appointment.

If he does decide to stick his neck out and elevate Judge Garland to the position of temporary Supreme Court Justice (traditionally, once you’re a justice for the highest court in the land, you’re there for life), it will present a bit of a legal quandary. In 2012, the last time Obama tried to circumvent the Senate with recess appointments, the Supreme Court actually overturned several of his appointments.

According to a 9-0 ruling by the high court, the Senate was technically still in session when Obama did his appointing, thus nullifying his “recess appointment” executive power.

That same ruling, however, specifically noted a difference between recess appointments made during breaks of the Senate sessions (“intrasession” appointments) and those made in the brief window between Congressional sessions (“intersession.”)

That distinction could give Obama the legal leverage he needs to get his guy on the Supreme Court bench as he heads out the White House door. According to law professor William G. Ross, Obama would be within his rights and legal authority to make Judge Merrick Garland an intersession “recess appointment” to the high court. However, in doing so, he could end up causing sweeping issues for the Supreme Court and even 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.”

Despite the political pressure to elevate Garland to the court, most believe that Obama won’t do it and that it would be foolhardy if he did. In addition to being entitled to serve on the Supreme Court for only a year as a recess appointee, Garland would also lose his seat on the U.S. Court of Appeals for the D.C. Circuit.

“Since Garland could serve only a year, he presumably would accomplish little and his service would be clouded by the strange and controversial circumstances of his appointment,” said Mr. Ross, the law professor.”

Because neither Obama nor the White House is talking about the POTUS’ intentions (or lack thereof) to use his executive authority to elevate Merrick Garland to the Supreme Court, the world will just have to wait until tomorrow’s brief Congressional recess to see if the President has one more trick up his sleeve.

[Featured Image by Marco Garcia/AP Images]

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