The Court Appointment Belongs to Next President

Here we go, the biggest battle of the Obama Administration since Obamacare. With Antonin Scalia’s passing, the wisest jurist of the past fifty years has left us. President Obama will quickly build his political machine to press the U.S. Senate, with help from every available media outlet, to support the idea of his appointing a liberal justice to replace Scalia. 

This appointment will be dressed up as a “moderate,” but with this opportunity before him, Obama will not waste the chance on a “moderate.” The appointment would radically tip the Supreme Court away from the current balance of 5-4, away from constitutional restraint and in favor of judicial activism.  

The new court could be expected to methodically unmake the American commitment to rule of law, as defined by applying constitutional text to facts, without political interference. The new court would soon become a politicized branch of the Federal government, locking in liberal congressional actions and creatively remaking laws.

In this way, the new court would seek to remake society in a liberal activist mold, objectively endorsed by only a fraction of America. This lurch to the Left politically – remaking the definition of judicial review -- would decisively eviscerate 200 years of respected jurisprudence and institutional behavior – what we call constitutional history.

So, how can it be stopped? What would our Founders, writers of the U.S. Constitution, say? The answer seems clear. But let us play out likely events, to see how dangerous this situation is. Within weeks, the president will loft a name and liberal groups will coo about the choice. Recorded endorsements of this nominee will be dragged out, especially for his or her inferior judicial confirmation. Senators will be called hypocrites for not now supporting him or her. Charges of racism or sexism can be expected. 

There will be intense battles in the U.S. Senate. Pressure will mount to a point where shaming becomes a form of art, no reference to the nearly 100 years of confirmation precedent and 200 years of deference to the electorate. Hearings will be demanded. If the nomination gets close to the floor, a handful of brave senators, like Senator Cruz and possibly Rubio, will put a hold on the vote, but will be pressed mercilessly to be “reasonable, accommodating, fair, to stop being racist.” If such a nomination got to the floor, expect the master of filibuster, Senator Cruz, to try to stop it. He might last as long as any, but a three-fifths vote in the Senate would eventually sideline him. 

Here is where we must stop. The weight of history, prudence and democracy is with those who seek to preserve this decision for the next president, whoever that may be. Article 2, Section 2, Clause 2 of the United States Constitution -- the so-called Appointments Clause -- allows a president to appoint certain public officials, only with the “advice and consent” of the Senate. The operative word is “consent,” or the appointment is void. 

Historically, Senate “consent” to any nominee for the U.S. Supreme Court is essential. Moreover, the higher the appointment and the closer to end of a president’s term, the more delay has been viewed as appropriate. Thus, President John Tyler forward, there have been extended delays in confirmation of a U.S. Supreme Court justice. This is especially so where deep divisions existed between a sitting president and Senate’s views on major issues, when dysfunction roils president and Senate (as in Tyler’s time), when concern exists over nominee positions or qualifications, and when divisive issues lie before the U.S. Supreme Court. We see all of these now.

In multiple cases, time elapsed between the death of a justice and seating of his replacement has been in excess of a year, sometimes upwards of two years. While that it not the norm, it is also not outside history’s track. In this case, there appear to be a number of arguments for delay -- some historical and others prudential. Specifically, while historically delay is counseled by today’s deep national division and pending election, delay is wise for other reasons. The respect that Americans will accord the Court, and rule of law itself, may hang in the balance. A new president will be supported by the majority of our country, imbuing that president’s nomination with authority, which will preserve authority for the Court.

If that president were a woman, Obama’s nominee would have preempted the right of the first sitting woman to appoint her own Supreme Court Justice; if the next president is focused on one or two issues, such as banking policy or campaign finance reform, Obama would have preempted that president’s chance to fill the vacancy. Likewise, if the next president is a strict constructionist, as Justice Scalia was, then that president deserves the right to appoint a like-minded jurist. Finally, there can be little doubt that finding the right replacement for an irreplaceable giant of legal jurisprudence should be lengthy – to find the right choice.

Which brings us to the ultimate question: If the President nominates a nominee in the fading months of his tenure and the Senate stops that nomination until the session ends, could President Obama jam the country with a first-ever recess appointment of a U.S. Supreme Court Justice?

There is profound irony in this question. In the 2014 decision National Labor Relations Board v. Noel Canning, the U.S. Supreme Court, aided by Scalia, tipped against recess appointments. In June of that year, the U.S. Supreme Court struck down (9-0) three of the president’s recess appointments, effectively deeming them unconstitutional, made during a pro forma congressional break of three days. Justice Scalia himself explained. With uncanny prescience, he wrote what some have called a “withering” concurrence. He warned against transgressing the text of the U.S. Constitution, sounding like Senator Cruz, who clerked for conservative Justice Rehnquist. 

When the Court set an arbitrary “10-day rule,” Scalia lit into majority writer Justice Breyer: “The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” adding that real answer was to limit, not allow recess appointments beyond what the Founders had intended. 

Bridling at the sudden 10-day invention, Scalia added: “A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court -- in other words, the sort of practice on which the majority relies in this case -- does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.”

As they say in some parts of the country, “boom tick.” Scalia nailed it, on a contingency soon related to his own legacy. The torch is being passed. There is no justification for taking away from the next president the prerogative that will follow the pending election. There is no basis for a recess appointment, legally or otherwise. But if that absurdity were to occur, the U.S. Senate and a worthy Nation should immediately seek to have it stayed, thrown out as unconstitutional, or -- if need be -- keep the U.S. Senate in session for a period of less than ten days, barring a recess appointment -- even under Justice Breyers’ opinion -- and justly vindicating Justice Scalia’s fidelity to the Constitution’s text.  

Robert B. Charles, is a former litigator who clerked on the US Court of Appeals, served in the Reagan and Bush White Houses, taught law at Harvard University’s extension school, and was appointed by George W. Bush as Assistant Secretary of State, where he worked on rule of law issues. 

Here we go, the biggest battle of the Obama Administration since Obamacare. With Antonin Scalia’s passing, the wisest jurist of the past fifty years has left us. President Obama will quickly build his political machine to press the U.S. Senate, with help from every available media outlet, to support the idea of his appointing a liberal justice to replace Scalia. 

This appointment will be dressed up as a “moderate,” but with this opportunity before him, Obama will not waste the chance on a “moderate.” The appointment would radically tip the Supreme Court away from the current balance of 5-4, away from constitutional restraint and in favor of judicial activism.  

The new court could be expected to methodically unmake the American commitment to rule of law, as defined by applying constitutional text to facts, without political interference. The new court would soon become a politicized branch of the Federal government, locking in liberal congressional actions and creatively remaking laws.

In this way, the new court would seek to remake society in a liberal activist mold, objectively endorsed by only a fraction of America. This lurch to the Left politically – remaking the definition of judicial review -- would decisively eviscerate 200 years of respected jurisprudence and institutional behavior – what we call constitutional history.

So, how can it be stopped? What would our Founders, writers of the U.S. Constitution, say? The answer seems clear. But let us play out likely events, to see how dangerous this situation is. Within weeks, the president will loft a name and liberal groups will coo about the choice. Recorded endorsements of this nominee will be dragged out, especially for his or her inferior judicial confirmation. Senators will be called hypocrites for not now supporting him or her. Charges of racism or sexism can be expected. 

There will be intense battles in the U.S. Senate. Pressure will mount to a point where shaming becomes a form of art, no reference to the nearly 100 years of confirmation precedent and 200 years of deference to the electorate. Hearings will be demanded. If the nomination gets close to the floor, a handful of brave senators, like Senator Cruz and possibly Rubio, will put a hold on the vote, but will be pressed mercilessly to be “reasonable, accommodating, fair, to stop being racist.” If such a nomination got to the floor, expect the master of filibuster, Senator Cruz, to try to stop it. He might last as long as any, but a three-fifths vote in the Senate would eventually sideline him. 

Here is where we must stop. The weight of history, prudence and democracy is with those who seek to preserve this decision for the next president, whoever that may be. Article 2, Section 2, Clause 2 of the United States Constitution -- the so-called Appointments Clause -- allows a president to appoint certain public officials, only with the “advice and consent” of the Senate. The operative word is “consent,” or the appointment is void. 

Historically, Senate “consent” to any nominee for the U.S. Supreme Court is essential. Moreover, the higher the appointment and the closer to end of a president’s term, the more delay has been viewed as appropriate. Thus, President John Tyler forward, there have been extended delays in confirmation of a U.S. Supreme Court justice. This is especially so where deep divisions existed between a sitting president and Senate’s views on major issues, when dysfunction roils president and Senate (as in Tyler’s time), when concern exists over nominee positions or qualifications, and when divisive issues lie before the U.S. Supreme Court. We see all of these now.

In multiple cases, time elapsed between the death of a justice and seating of his replacement has been in excess of a year, sometimes upwards of two years. While that it not the norm, it is also not outside history’s track. In this case, there appear to be a number of arguments for delay -- some historical and others prudential. Specifically, while historically delay is counseled by today’s deep national division and pending election, delay is wise for other reasons. The respect that Americans will accord the Court, and rule of law itself, may hang in the balance. A new president will be supported by the majority of our country, imbuing that president’s nomination with authority, which will preserve authority for the Court.

If that president were a woman, Obama’s nominee would have preempted the right of the first sitting woman to appoint her own Supreme Court Justice; if the next president is focused on one or two issues, such as banking policy or campaign finance reform, Obama would have preempted that president’s chance to fill the vacancy. Likewise, if the next president is a strict constructionist, as Justice Scalia was, then that president deserves the right to appoint a like-minded jurist. Finally, there can be little doubt that finding the right replacement for an irreplaceable giant of legal jurisprudence should be lengthy – to find the right choice.

Which brings us to the ultimate question: If the President nominates a nominee in the fading months of his tenure and the Senate stops that nomination until the session ends, could President Obama jam the country with a first-ever recess appointment of a U.S. Supreme Court Justice?

There is profound irony in this question. In the 2014 decision National Labor Relations Board v. Noel Canning, the U.S. Supreme Court, aided by Scalia, tipped against recess appointments. In June of that year, the U.S. Supreme Court struck down (9-0) three of the president’s recess appointments, effectively deeming them unconstitutional, made during a pro forma congressional break of three days. Justice Scalia himself explained. With uncanny prescience, he wrote what some have called a “withering” concurrence. He warned against transgressing the text of the U.S. Constitution, sounding like Senator Cruz, who clerked for conservative Justice Rehnquist. 

When the Court set an arbitrary “10-day rule,” Scalia lit into majority writer Justice Breyer: “The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” adding that real answer was to limit, not allow recess appointments beyond what the Founders had intended. 

Bridling at the sudden 10-day invention, Scalia added: “A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court -- in other words, the sort of practice on which the majority relies in this case -- does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.”

As they say in some parts of the country, “boom tick.” Scalia nailed it, on a contingency soon related to his own legacy. The torch is being passed. There is no justification for taking away from the next president the prerogative that will follow the pending election. There is no basis for a recess appointment, legally or otherwise. But if that absurdity were to occur, the U.S. Senate and a worthy Nation should immediately seek to have it stayed, thrown out as unconstitutional, or -- if need be -- keep the U.S. Senate in session for a period of less than ten days, barring a recess appointment -- even under Justice Breyers’ opinion -- and justly vindicating Justice Scalia’s fidelity to the Constitution’s text.  

Robert B. Charles, is a former litigator who clerked on the US Court of Appeals, served in the Reagan and Bush White Houses, taught law at Harvard University’s extension school, and was appointed by George W. Bush as Assistant Secretary of State, where he worked on rule of law issues.