Thursday, January 5, 2017

Justice Scalia's Death: The Battle for the Supreme Court

The Battle for the Supreme Court
By: jamesbaxley
The 2016 presidential election was a trifecta, a hat trick of sorts for upsets in the Democratic Party: The Republicans won the presidency, regained the Senate, and will fill in the spot in the Supreme Court.

The death of Supreme Court Justice Antonin Scalia on February 12, 2016 was a shock to the legal community as well as for many Americans. Scalia's death left a big hole to fill in the United States legal system. He was a man of profound intellect and legal opinions which bordered on stylish and graceful.


According to Kevin Ring, the author of the 2004 book, Scalia Dissents: Writings of the Supreme Court's Wittiest, most Outspoken Justice, "His opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law interesting.”

Scalia was the son of Trenton N.J. and a resident of Virginia when he died. He was one of the last legacies of Ronald Reagan’s presidency. Choosing Scalia's replacement, though hard to replace, looks as if it will be up to a Republican president.

The confirmation of Chicago-born Judge Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit and the Democrats pick to replace Scalia, seems unlikely as there is less than two weeks until Donald Trump’s inauguration.

Judge Merrick Garland
There is one chance left to get Garland confirmed which is such a stretch it isn’t even worth considering, this last ditch effort is the “inter-session recess appointment.” In the five minutes between the time the Senate gavels the 114th Congress out of session and the time the Senate gavels the 115th Congress into session, the president can appoint Garland to the high court.

January 3, 2017, just before noon, between the outgoing 114th Congress and the incoming 115th Congress, President Barack Obama would just have five minutes to test his recess appointment powers.

President Teddy Roosevelt the most successful practitioner of the “inter-session recess appointment.” In 1903 the New York Times called Roosevelt’s use of the “inter-session recess appointment” an “infinitesimal recess” because of Roosevelt’s success at appointing 168 officers.

The downside to “inter-session recess appointments” is that the approval of Garland by the Senate would have to happen by the end of the next session of Congress, or the position becomes vacant again.  Garland's approval by the Republican led Senate, at least right leaning for the next two years, would most likely be a dream.  Article II, Section 2 of the U.S. Constitution authorization of recess appointments, which states:

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.
Democrats and those who oppose Trump's presidency have argued that the Senate has a constitutional obligation to act on Obama’s Supreme Court nomination.  Opposing the claim of "constitutional responsibility," Jonathan H. Adler, a Professor at Case Western Reserve University School of Law thinks there is “no support in the relevant constitutional text, constitutional structure, or the history of judicial nominations” which supports this claim. 

Strong policy and prudential arguments advocating that the Senate should at once consider all judicial nominations to the Supreme Court and Federal Courts for the reasoning of the belief the Senate has some sort of constitutional obligation to take specific actions is erroneous.

In an unprecedented move, Senate Republicans (under Senate Majority Leader Mitch McConnell) refused to consider Garland's nomination. Gabrielle Levy of U.S. News and World Report writes that the Senate would be holding "no hearings, no votes, no action whatsoever" on the nomination on any Supreme Court nomination. McConnell continues, “Obama has less than a year left in his term, he should not get to make a lifetime appointment until the American people got to vote on a new president.”


Another roadblock to Garland’s appointment is in the Noel Canning v. NLRB case. The Supreme Court has held that both intra-session and inter-session recesses would be unconstitutional. In the 2016 Presidential election, people involved with the Democratic Party either as politicians or voters, most likely politicians have argued that intra-session recess appointments is what the Supreme Court was speaking of. Justice Breyer’s opinion debunks that myth:

We conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

The inter-session recess would only be good for a year and recess appointing Garland to the Supreme Court would create a vacancy on the U.S. Court of Appeals for the D.C. Circuit which would be filled by President Donald Trump.

So a Hail Mary in the political ring if not successful would have bigger consequences than a Hail Mary in the NFL. 

Where’s Boomer when you need him?