I just learned that this was apparently an option open to him at the time. Why didn’t he just stick someone in there until a new person was formally appointed so the Dems would get some use out of the seat? Why dance to the tune of people he should have known would pull some maneuver to get their own person in the chair? Sorry if this was already argued back then-the new (to me) information sparked the question.
…confused: didn’t RBG die in 2020? What could Obama have done after that?
DANGIT. That’s wrong? Never mind. I clearly let my fingers run ahead of my brain. I meant Scalia.
McConnell used procedural moves to prevent recess appointments taking effect through the whole time he had a Senate majority.
Thank you for answering my confused question. I should have guessed there was a simple answer. 
There is this trick you can do with a flux capacitor and Delorean, provided you can somehow get the car up to 88 mph…
Stranger
But you still need 1.3 gigawatts.
Procedurally, this pro forma session trick to avoid ever having to permit recess appointments is rotten to the core. I wish it could be outlawed but unfortuately it is here to stay.
It was validated 9-0 by SCOTUS itself (NRLB v. Canning) back in 2014, so, yeah, it’s going nowhere.
Just to clarify for OP, under the Constitution the President is able to make a “recess appointment” to a vacancy in the executive or judicial branch that would normally require Senate confirmation, if such vacancy occurs while the Senate is recessed. A recess appointment expires at the end of the legislative session, so such an appointee cannot hold office for more than two years (unless subsequently confirmed by the Senate).
During the Obama Administration, the Republican-controlled Senate would convene pro forma sessions every three days so that they would not be in “recess.” These sessions were literally just a junior Republican Senator banging a gavel in an empty chamber. Obama challenged the Constitutionality of the maneuver (NRLB v. Noel Canning cited above) but the Supreme Court unanimously held that such pro forma sessions were sufficient to prevent the Senate from being considered recessed.
Although, Republican intransigent obstruction aside, recess appointments are themselves a procedural trick to bypass subvert the way things are supposed to work. If we had a normally functioning government then I would prefer if recess appointments were only used in the case of unforeseen emergency situations, instead of just being done as a matter of course to get around the constitutional requirement that the Senate OK’s candidates. And if cheesecake had zero calories I’d prefer to eat it every night.
I agree. Once upon a time we had a government where such matters as judicial appointments were made purely on the qualifications of the candidates and not on how we predict they will vote on social issues. We had a government where both sides would agree on general principles and compromise on the details. Days of compromise and negotation are over, perhaps for good.
Recess appointments should be rare and used in emergencies only. The president should be confident that qualified nominees would be given a fair hearing no matter who controls the Senate. Now Republicans have taken the position that they will never approve any Supreme Court justice that a Democratic president would nominate should they control the chamber.
And just for another detail: even with same-party government (like in 21-22) the House and Senate continue to use the 3-day pro forma in order to not trigger the requirement to agree with the other chamber on timing of the recess (where a disagreement can then trigger presidential intervention). Those weeks are instead scheduled as “District Office Work” or “Committee Work” periods, instead of recess , with the caveat that at any time the Speaker/Maj Leader can call everyone back into town if something important comes up.
I would have gone a step further and said that since the Constitution requires “Advise and Consent” that the failure of the Senate, while in session, to take up the nomination implied consent by silence.
I believe (but am not where I can look it up) that idea, too, has been smacked down by the court at some time…
The recess appointment authority was a lot more important in the early days of the Republic when the Senate would meet for a few months then adjourn for a year or more.
I’ll also note this isn’t necessarily a partisan issue— the constant three-day pro forma sessions to prevent recess appointments began with Harry Reid toward the end of W’s Administration.
This is exactly what I was thinking through the entire time way back when Scalia died and the whole Garland thing happened. That old latin quote in full says it perfectly, ‘he who is silent when he ought to have spoken and is able to is taken to consent.’
If there was ever an opportunity to change the rules, I’d definitely say there should be a time limit: if the Senate hasn’t voted within x days of a nomination, the Senate’s consent is automatically considered to be granted.
As an expert in time machines I feel something is wrong with that theory. Probably 88MPH is insufficient, I’d expect that speeds closer to 100MPH would be necessary. And any car with a stainless steel body will probably do.
OK having done some digging around, apparently it has not been so ruled conclusively.
The recess appointments clause itself, however, by stating that the appointment’s commission expires at the end of the next session, does seem to carry with it a strong implication against mere inaction being considered assent beyond the term of the session.
It hasn’t been directly ruled on, but I don’t think there’s any way to read the Obama NLRB opinion and think that any of the nine justices would have been cool with non-action being construed as consent. If “the Senate is in session when it says it is,” then the Senate presumably also consents when it says it does.
And the Scalia concurrence that was even more deferential to the Senate probably has six votes now.