Obama unlikely to appoint Garland to SCOTUS – but it's not impossible

The 115th Congress will be sworn in today at noon, continuing an unbroken transition of power begun more than 220 years ago.

But at approximately 11:55 AM, the 114th Congress will come to order and then go into recess.  For five minutes, President Obama will have the nearly unprecedented opportunity to make a recess appointment to the Supreme Court of Merrick Garland.

Once before in history, a president took advantage of that quirk of timing.  Theodore Roosevelt appointed 169 judges and executive branch positions in that interregnum.

But White Hoiuse observers haven't heard any chatter or leaks that President Obama would take such a bold step.  Besides, Senate Democrats would be extremely uneasy about such a move.

Fox News:

The possibility of a Roosevelt-esque power play would be seen as foolish from a strategic standpoint, according to one Senate GOP leadership aide.

"They would trade a short-term on SCOTUS, for a full-time, lifetime tenured seat on the DC Circuit. And that's assuming that SCOTUS would let it stand,” the aide told Fox News.

That’s a reference to the fact that recess appointments only last for a short period. Whereas, Garland is currently serving on arguably the most important court, save for the Supreme Court. And it is a lifetime opportunity – unless Garland were to give it up for a chance on the higher court for a couple years. In other words, as a “recess appointment,” Garland would have to face Senate confirmation at some point.

Also, incoming Senate Minority Leader Chuck Schumer, D-NY, is a dealmaker. He has to work with the GOP majority. Schumer must also protect vulnerable Senate Democrats facing tough reelections this year. If the Democrats pull the Garland trick, Senate Majority Leader Mitch McConnell would shut off the tap to the Democrats.

A stunt like this with Garland would be the “thermonuclear option.”

Additionally, a move like this is something that no one on Capitol Hill is talking about. It’s just not a topic of conversation. For their part, Senate Democrats are busy girding for heating confirmation battles as President-elect Trump prepares to take office.

As for the legal ramifications, while there are experts who say such an "intersession" recess appointment could be legal, it's still quite arguable.

Look back at the 2014 Supreme Court decision on recess appointments.

The High Court struck down a series of Obama appointments to the National Labor Relations Board (NLRB). It was a victory for the Senate GOP which brought the case.

 As a result, the Republican-run Senate has been very careful to hold "pro-forma" sessions every few days (where the Senate literally gavels in and gavels out after 20 to 30 seconds) to leave no gap under which a recess appointment could be valid. The NLRB case indicated that only if the Senate were gone for more than ten days could an administration consider the Senate as being "on recess." Thus, only then would a "recess appointment" be in order.

However unlikely a Garland appointment might be, no one is dismissing the possibility out of hand.  President Obama has shown over the last few weeks that he is determined to sabotage the new administration, and no one is putting it past Obama to appoint Garland through chicanery and sleight of hand.

Garland could do a lot of damage in the short time he would sit on the bench.  His decisions couldn't be overturned unless another case addressing the same constitutional issue made it to the high court not unheard of, but rare.  So despite the uncertainty regarding the lengths to which the president will go to make life difficult for President Trump, a Garland appointment probably isn't in the cards. 

The 115th Congress will be sworn in today at noon, continuing an unbroken transition of power begun more than 220 years ago.

But at approximately 11:55 AM, the 114th Congress will come to order and then go into recess.  For five minutes, President Obama will have the nearly unprecedented opportunity to make a recess appointment to the Supreme Court of Merrick Garland.

Once before in history, a president took advantage of that quirk of timing.  Theodore Roosevelt appointed 169 judges and executive branch positions in that interregnum.

But White Hoiuse observers haven't heard any chatter or leaks that President Obama would take such a bold step.  Besides, Senate Democrats would be extremely uneasy about such a move.

Fox News:

The possibility of a Roosevelt-esque power play would be seen as foolish from a strategic standpoint, according to one Senate GOP leadership aide.

"They would trade a short-term on SCOTUS, for a full-time, lifetime tenured seat on the DC Circuit. And that's assuming that SCOTUS would let it stand,” the aide told Fox News.

That’s a reference to the fact that recess appointments only last for a short period. Whereas, Garland is currently serving on arguably the most important court, save for the Supreme Court. And it is a lifetime opportunity – unless Garland were to give it up for a chance on the higher court for a couple years. In other words, as a “recess appointment,” Garland would have to face Senate confirmation at some point.

Also, incoming Senate Minority Leader Chuck Schumer, D-NY, is a dealmaker. He has to work with the GOP majority. Schumer must also protect vulnerable Senate Democrats facing tough reelections this year. If the Democrats pull the Garland trick, Senate Majority Leader Mitch McConnell would shut off the tap to the Democrats.

A stunt like this with Garland would be the “thermonuclear option.”

Additionally, a move like this is something that no one on Capitol Hill is talking about. It’s just not a topic of conversation. For their part, Senate Democrats are busy girding for heating confirmation battles as President-elect Trump prepares to take office.

As for the legal ramifications, while there are experts who say such an "intersession" recess appointment could be legal, it's still quite arguable.

Look back at the 2014 Supreme Court decision on recess appointments.

The High Court struck down a series of Obama appointments to the National Labor Relations Board (NLRB). It was a victory for the Senate GOP which brought the case.

 As a result, the Republican-run Senate has been very careful to hold "pro-forma" sessions every few days (where the Senate literally gavels in and gavels out after 20 to 30 seconds) to leave no gap under which a recess appointment could be valid. The NLRB case indicated that only if the Senate were gone for more than ten days could an administration consider the Senate as being "on recess." Thus, only then would a "recess appointment" be in order.

However unlikely a Garland appointment might be, no one is dismissing the possibility out of hand.  President Obama has shown over the last few weeks that he is determined to sabotage the new administration, and no one is putting it past Obama to appoint Garland through chicanery and sleight of hand.

Garland could do a lot of damage in the short time he would sit on the bench.  His decisions couldn't be overturned unless another case addressing the same constitutional issue made it to the high court not unheard of, but rare.  So despite the uncertainty regarding the lengths to which the president will go to make life difficult for President Trump, a Garland appointment probably isn't in the cards. 

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