Obama still might be able to put Merrick Garland on the Supreme Court

Remember Merrick Garland, the judge President Obama nominated for the Supreme Court? Back in March, Republicans said they would not consider the nomination because it came too late in Obama's term to be considered, and they would leave it to the next President to choose a nominee.

But Democrats never give up, and President Obama may have a unique opportunity when the Senate goes into recess. Under the law, when the Congress is in recess for at least ten days, the President can make what's called recess appointments.

Under the Constitution and Supreme Court precedent, a president may make a recess appointment – including one to the Supreme Court – but only if the Senate is in a recess that lasts at least ten days. If the Senate reassembles more frequently than that, but does no business other than formally opening and closing a session, that still interrupts the opportunity for a recess appointment to any federal post.

Once the Senate has recessed this year’s session for the final time, in late December, the Garland nomination – if not acted upon – would be returned to the White House.

But whether that would create an opportunity for President Obama to name Garland to a recess appointment before inauguration day on January 20 depends upon how late in December the Senate is formally sitting, determining how long a recess will be until the new Congress meets on January 3.

In other words, if the Senate goes into a final recess before December 24th, or even simply takes ten days off in November or December, Obama will have a golden opportunity to directly put Garland on the Supreme Court. And recess appointments last until the end of the next session of Congress, which means two years.

Article II, Section 2 of the Constitution reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

And in fact, President George W. Bush appointed William H. Pryor a circuit court judge during a Senate recess on February 20, 2004, and the appointment lasted past the November 2004 election until the end of 2006.

Let's hope that Mitch McConnell has enough brains to keep the Senate in session every few days and not get caught with his pants down, legislatively speaking.

Ed Straker is the senior writer at NewsMachete.com.

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