Recess appointment is only an option if the Senate decides it is in recess. Those pro forma sessions where someone raps a gavel once every three days are legally sufficient to prevent a recess appointment. This was decided in a unanimous vote by the Supreme Court NLRB v Canning just a couple years ago.
What could happen: Obama makes a nomination for the seat; the Senate totally stonewalls; the Senate and the WH change hands in the November election; Democratic Senate convenes on January 3rd, approves Obama’s choice, before the new President can be inaugurated on the 20th.
More importantly, the middle is what wins and loses elections. And the middle likes moderation and cooperation. Obstructionism might motivate that large middle.
If the Senate changes control there is still the issue of the filibuster. Are the Dems going to use the nuclear option with Reid gone? He promised that Supreme Court nominees would still be subject to the filibuster.
I read one column that suggested that Chuck Schumer, who will likely be the next Senate Majority leader if the Democrats take the Senate, should threaten to go full nuclear option if the Republicans fail to confirm the Obama nominee. Let them know up front there will be consequences for obstructionism, and see if they want to roll the dice.
Byron White, nominated by Kennedy comes to mind. And, of course, Republicans like Cruz now even whine about diehard conservatives like Roberts just because they try to stick to a very conservative judicial philosophy occasionally even on cases that don’t lead to the politically-correct conservative ruling (e.g., Obamacare).
Horseshit. Nobody’s going to stand in Obama’s petulant ways. It will never come to a vote that is all. And the glorious dark-skinned president and his ignorant law degreed wife will retire to Hawaii, open up 50 Zaxbys franchises and we’ll be done them. Screw these people. I don’t like like them or respect them. They are my enemies.
If it’s improper for the President to nominate a justice in his last year, what government business IS it proper to perform? Not that conservative lawmakers will answer or be asked that.
“The fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year.”
Really? “Standard practice” requires something has happened a minimum of once. The Republicans are going to try to push this narrative that Obama nominating someone in his final year is somehow unusual, and their constituents are going to believe it regardless of how demonstrably untrue it is.
They should stick to “the president not to nominate SCOTUS justices during an election year”, which would hold true for that instance. Of course, “an election year” is an arbitrary measure since there is nothing significant about Jan 1 in an election cycle.
I think one could make the case for presidents not to make significant nominations in the roughly 2 months after an election and before the inauguration, but that’s a different matter.
This whole thing–please tell me it’s so transparently fake that nobody except true believers will take it seriously.
I mean, manipulating numbers is part of the politics game. But this appears beyond the pale to me. Surely everyone can acknowledge that the president is duty-bound to present nominees, and that the nominees should be decided on their merits, not on some sort of newly-invented tradition about what to do when a justice dies in an election year.