Filling a vacancy in the SCotUS

[Platapus]

Since this will clearly become a contentious issue this year, I thought a separate thread on this process would be appropriate. As in most legal operations of our government there are some misconceptions which makes it confusing for US citizens and foreign nationals to understand the process.

First of all, 28 U.S.C 1 sec 1 states that the Supreme Court of the United States shall consist of nine justices in which any six can serve as a quorum. A quorum, in this context means that in order to hear any case, at least six justices must be present.

Vacancies in the SCotUS are normally filled by a Presidential nomination followed by a Senate confirmation. Confirmation is by a simple majority of the number of senators present. The actual nomination and confirmation process is much more complicated as both the Executive and Legislative branches have various subcommittees that handle background investigations. Unfortunately, by its very nature, the process is heavily influenced by politics.

Does a Justice (SCotUS Judge) need to be a judge? No. But all Justices have been at least lawyers.

Does the Senate have to confirm all Justices? Yes.. eventually. And this is the contentious part. -- Recess appointments.

Normally, the President nominates a justice and the Senate confirms it. Article 2 section of the constitution states, in part

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law... The President can appoint a Justice immediately and without Senate confirmation under some very special circumstances.

Article 2 section 3 of the US Constitution 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. In this context the phrase "end of their next session" means after the next senatorial election. While Senators serve 6 year terms, one third of the Senate is elected every two years. Therefore a recess appointment is good for at most just over 2 years. Presidents realize that in the end, their nominee must be confirmed by "a" Senate. Sometimes a President may hope to have a more "friendly" Senate after the next senatorial election.

The Senate, like the House of Representatives have recesses or times where they are not officially in session. This can include weekends, holidays, vacations or other approved absences.

Article 1 Section 5 of the Constitution states, in part, that

Neither House, during the session of congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. This means that if the Senate is on recess, the President can directly appoint a Justice and that justice starts working immediately because there was no Senate to confirm it. For obvious reasons, these types of recess appointments are often considered a way of circumventing (at least temporarily) the authority of the Senate. In other words, it is a good way to get the Senate united against the President. Even Senators of the same political party as the President get annoyed. The Senate is, rightfully, jealous of their constitutional authority.

There is no minimum amount of time that a recess must be in place before a President can make a recess appointment. President Theodore Roosevelt made a recess appointment when the Senate was in recess one day.

So what can a Senate do to prohibit a recess appointment?

1. Don’t go on recess

2. Hold a “Pro Forma” meeting. A pro forma meeting is a special type of meeting in which the Senate has a meeting, but no legislative business is performed. a minimum of one Senator is needed and often this Senator will sit in an empty chamber. Pro Forma means “in the form of” or, “in the name of”. It is a meeting that serves only to establish that a meeting is occurring. During a Pro Forma Senate meeting, the Senate, by definition is not in recess and therefore the President can’t make a recess appointment. Usually Senators from Virginia, Maryland, and Delaware are selected to hold Pro Forma meetings because they are the closest to the Capitol.

It should be noted that all Presidents have made statements that they believe that the Pro Forma meeting does not meet the requirements for the Senate being in session (primarily due to rules about quorums) and that a President can make a recess appointment during a Pro Forma meeting.

In 2014, the SCotUS over turned three of President Obama’s recess appointments to the National Labor Relations Board as unconstitutional. The recess appointments were made in 2012.

The court ruled 9-0 that Obama’s appointments were unconstitutional because the Senate was not truly in recess when he made them during a three-day break in pro forma meetings of the legislative body. So it appears that not only is the SCotUS taking this seriously, the 9-0 vote should help dispel the myth that justices vote according the political parties of the President that nominated them.

Both political parties make and block recess appointments (not just SCotUS appointments). American politics being what they are, there are people keeping very close track of the numbers in hopes of being able to claim that the “other” side makes more or blocks more, but that is kinda silly. Both parties use and abuse the recess appointment rule.

What is the likelihood that a President can get a recess appointment for SCotUS Justice later confirmed by the Senate?

It used to be pretty good. In the history of the US, there have been 10 Justices appointed by recess appointments. Nine of them were later confirmed., but it should noted that the last time a Justice was appointed by a recess appointment was in 1959 and our political environment has changed. Just for those who like the numbers

Washington appointed two and one was later confirmed
Monroe appointed one and was later confirmed
Polk appointed one and was later confirmed
Fillmore appointed one and was later confirmed
Lincoln appointed one and was later confirmed
T. Roosevelt appointed one and was later confirmed
Eisenhower appointed three and were later confirmed

So if President Obama were to attempt a recess appointment for a Justice, it would be the first Since 1959. Is he going to try it? I honestly don’t know. Clearly Obama is not interested in how those would affect his re-election as he at the end of his second term. It all depends on how confident he is in

1. A Democratic President being elected in 2016

2. The chances of the Democrats obtaining a majority in the Senate in the next senatorial election

Currently the composition of the US Senate is

54 Republicans
44 Democrats
2 Independents who currently caucus with the Democrats

In November 2016 there are 34 Senators up for re-election

10 Democrats
24 Republicans

Therefore it is possible that in early January 2017, President Obama may have a Democratically controlled Senate (Senators are sworn in at the start of January, the new President will be sworn in on the 20th) for the last days of his term.

If President Obama feels confident that 2016 will result in a Democratic majority in the Senate, he might not risk a recess appointment, but will go for a fast confirmation between the time of the new Senate and his last day. This will be very risky as it would be very easy for a Senator to delay the confirmation until the new President is sworn in.

In November 2018, there will be 33 Senators up for re-election

23 Democrats
8 Republicans
2 Independents

Remember, if President Obama makes a recess appointment, that appointment will be valid until after the 2018 Senate elections (January 2019). President Obama may decide that a recess appointment is the best chance if

A Republican is elected President in 2016
The Republicans maintain a majority in the Senate after 2016
The Democrats have a good chance to obtain a majority after the 2018 election.

This is a tough call to make. There is a slight advantage of an outgoing President making a recess appointment so that the new President can isolate themselves (some some level) from the decision.

My prediction?

The Senate will hold Pro Forma meetings during the planned recesses until Jan 2017 when the new Senate is in session and then after that, depending on the outcome of the 2016 election delay any confirmation until after the new President is sworn in.

It will be interesting to watch. No, actually it will be a painful reminder of how something that should be apolitical is, in fact, very political. :down:

[August]

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.

To my non-lawyerly thinking the death of Judge Scalila didn't happen during a recess of the senate. :hmmm:

[Platapus]

To my non-lawyerly thinking the death of Judge Scalila didn't happen during a recess of the senate. :hmmm:

This is why we need a multi person supreme court in order to figure out what these founding dudes meant with their 18th century writin' :hmmm:

There are several instances in the Constitution where you have to scratch your head trying to figure what 18th century words and wording means to a 21st century reader. :06::06:

[Jimbuna]

Not fully up to speed on the subject matter but the UK press are speculating a new appointment may not be made until a new POTUS is elected or Obama may go for a more liberal appointment in the interim.

[Oberon]

I've heard some idle rumour that Obama might offer himself up for nomination if a Democrat congress and president gets in.

The chaos that would cause. :dead:

[Torplexed]

I've heard some idle rumour that Obama might offer himself up for nomination if a Democrat congress and president gets in.

The chaos that would cause. :dead:


As far as I can recall, the only ex-President ever appointed to the Supreme Court was William H. Taft as Chief Justice in 1921. But then he had been a federal judge for many years prior to being president. Yeah, since Obama has never even been a judge I don't think it would go over well to put it mildly. :D

[Platapus]

I've heard some idle rumour that Obama might offer himself up for nomination if a Democrat congress and president gets in.

The chaos that would cause. :dead:

It would be interesting to see the citation for that. It sounds like something made up on the Internets Tubes.

Legally, there is nothing preventing a president from nominating themselves for the position but there are prohibitions, under the concept of "Incompatible offices" of holding both positions at the same time. Although it is interesting that court cases only address the Legislative Branch, not the Executive Branch. Since this has not come up before, the SCotUS has not ruled on it.

[Tchocky]

Great write-up as always, Platapus :up:

Looking forward to seeing how this pans out. Don't think McConnell has a wonderful argument for delay tbh.

[Oberon]

Oh it is something from the Internet Tubes, an idle rumour as it were, but it is definitely an option if he wants to leave the decision for the next POTUS and Senate to make. I doubt he'd get the nomination, but he could try it.

So, anyway, who is the favourite for the job? :hmmm:

[Tchocky]

Sri Srinivasan from the DC Appeals court is one name I've heard.

[Commander Wallace]

This is a great dissertation Platapus. It obviously took you a while to write everything.

Thanks for taking the time out to put together this informative and well written article.
I wasn't aware that Justice Scalia had passed away yesterday. Condolences to his family and friends and colleagues .

Mitch McConnell has gone on record as saying that any new appointments to the Supreme Court should done by the new, incoming president. The Senate is afraid of any new appointments by President Obama that would support his liberal views and agendas.


Mitch has been the Majority leader of the U.S Senate since Jan. of 2015.

[Platapus]

So far only one US President has gone to be later a Justice. That was William Taft and there were 8 years between leaving the presidency and becoming a Justice.

I don't know if we will ever have an ex-president holding an official office any more

There is a common cultural elief that a former president should not hold other offices. This was one of the rationals for the The Former Presidents Act of 1958 (3 U.S.C. § 102)

[Onkel Neal]

Excellent thread, and summary, Platapus. I think since the President has almost a full year left in office, it is necessary for the Senate to hear any nominations he wishes to make to fill the vacancy. Now is a good time for the President to make good on his wishes for less polarization. He could nominate a moderate candidate, no more Sotomayors.

[Oberon]

Would even a moderate get through the Senate though? Or would he have to wait until recess and put him or her through then?

If Obama wanted to make some political capital, he'd pick a moderate, see if the Senate bounces it, and then point out that he tried and the Senate are just bouncing it out of spite, then put the moderate through on recess.

[August]

Hmmm according to the senate calendar they are on recess until the 22nd. What's to prevent the President from making an appointment next week?

[Tchocky]

In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.


The same situation would likely apply when this year’s Senate session comes to an end, and the senators take a recess before the next Congress assembles.


The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there. The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.


http://www.scotusblog.com/2016/02/is-a-recess-appointment-to-the-court-an-option/

[Bilge_Rat]

Sri Srinivasan from the DC Appeals court is one name I've heard.

so have I, he is on the short list and was approved by the Senate 97-0 to his current posting, I believe, 3 years ago.

President Obama is still President for another 11 months so he will appoint someone, preferably someone non controversial like judge Srinivasan. This way he throws the ball in McConnell's court and can spend the next year accusing HIM of playing politics if he does not move on it.

[Aktungbby]

It will be interesting to watch. No, actually it will be a painful reminder of how something that should be apolitical is, in fact, very political.
:hmmm: Actually, Obama, a veteran of the Senate, and having put two ladies into the court can afford to slide a little. With two ladies on the Supreme Court;55 judges to the Appeals courts; and 264 judges to the District courts... there are only 39 nominations in 'limbo' including the upcoming Supreme one. POTUS O is hardly losing on points and has left his mark for decades to come. https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Barack_Obama (https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Barack_Obama) The peculiar quasi-sacred nature of the Supreme Court(no packing allowed FDR etc) will allow him to consider his 'lame duck' status against a Republican two-house legislature; He will select a highly qualified Republican candidate acceptable to all. The nature of the sacred court is such that a candidate, once seated, literally "becomes' God's archbishop...not the King's" to misquote Becket. No president has control of a lifelong appointee and party no longer applies. A few presidents have thus regretted their appointments... Generally speaking, nominees who have evolved in unanticipated ways did not have federal court backgrounds," said David Garrow, a Supreme Court historian at Emory University. "It's a response to the pressures of Washington, with the Supreme Court presenting legal questions they did not have to confront before."
They include Chief Justice Earl Warren and Justice William Brennan, two Eisenhower appointees who from the 1950s to the 1970s led the court in assaulting racial segregation and expanding individual rights against the government. Warren was a former Republican governor of California; Brennan, a New Jersey state court judge, was coveted partly as a Catholic.
Eisenhower later said the two were among his biggest presidential mistakes.
Other "disappointments," according to historians, were Harry Blackmun, Nixon's law-and-order choice who penned the landmark Roe v. Wade decision making abortion a constitutional right. He later opposed the death penalty. Other notables: Some of the Supreme Court justices who defied expectations of the presidents who appointed them: Oliver Wendell Holmes, appointed by Republican Theodore Roosevelt in 1902, sided with businesses and voted against the president in a case challenging the Sherman Antitrust Act. Roosevelt reportedly said of Holmes afterward, ``Out of a banana I could carve a firmer backbone.''
http://images.usatoday.com/_common/_images/bullet.gifFelix Frankfurter, appointed by Democrat Franklin D. Roosevelt in 1939, became a strong advocate of judicial restraint, clashing with liberal members who sought an active court role in protecting minorities and monitoring fairness in the political process, such as legislative redistricting.
http://images.usatoday.com/_common/_images/bullet.gifEarl Warren, appointed by Republican Dwight Eisenhower in 1953, presided as chief justice over a court that assaulted racial segregation, outlawed school prayer and expanded individual rights against arbitrary government searches.
http://images.usatoday.com/_common/_images/bullet.gifWilliam Brennan, appointed by Eisenhower in 1956, became the liberal architect of the Warren Court's decisions, and later secured majorities supporting affirmative action and overturning flag-burning laws.
http://images.usatoday.com/_common/_images/bullet.gifJohn Paul Stevens, appointed by Republican Gerald Ford in 1975, became a leader of the court's more liberal bloc in pushing a strict line between church and state, greater federal authority over states and protecting abortion rights.
http://images.usatoday.com/_common/_images/bullet.gifAnthony Kennedy, appointed by Republican Ronald Reagan in 1988, was a key swing vote in decisions promoting gay rights, barring prayer at school graduation and outlawing the death penalty for people who committed crimes as juveniles. David H. Souter, appointed by Republican George H.W. Bush in 1990, generally sides with the court's more liberal members in promoting abortion rights, upholding affirmative action and limiting use of the death penalty
In short Obama knows to 'throw the Senate a bone' and focus on his Presidential library on this one; any justice nominated will go his own way ...anyway! It's ultimate judicial perk!:ping: :damn:

[Oberon]

Maybe he'll put in Anita Hill. :har::haha: :03:

[Jimbuna]

Maybe he'll put in Anita Hill. :har::haha: :03:

Is Trump qualified in law? :hmm2:

[Subnuts]

Oh nooooes....

Obama Compiles Shortlist of Gay, Transsexual Abortion Doctors to Replace Scalia (http://www.theonion.com/article/obama-compiles-shortlist-gay-transsexual-abortion--52361)

[Bubblehead1980]

The next nominee needs to have a record reflecting this, the only truly legitimate view of the constitution.

"That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things." -Antonin Scalia

Promise you not one person Obama would consider nominating holds this legitimate view, the way the founders looked at it and meant for it to be interpreted. Instead, he will nominate some "living" constitution moron who will "find" things that do not exist to justify their agenda.

For that reason and that reason only, I am okay with them not confirming whatever pseudo marxist, anti white(Sotomayor for example) , class warrior who will subvert our rights even more.

Obama has shown can not be trusted.

Should Hillary or Bernie win, well guess will be stuck but hopefully Trump or Cruz are in and will nominate a real Justice.

[Oberon]

https://yourmommasbasement.files.wordpress.com/2014/12/jodaily.gif

[Tchocky]

The lawyer is back!

EDIT - How the hell can the Senate be trusted!? We havent't repealed the 17th Amendment!

[Platapus]

The next nominee needs to have a record reflecting this, the only truly legitimate view of the constitution.




I know this is futile of me, but I have to at least make the attempt.

There are several schools of thought when it comes to interpreting the constitution. They all have their advantages and disadvantages; their proponents and opponents. None is more "legitimate" than any other.

It is natural for people to prefer schools that agree with their opinions, but that does not make any particular school more or less legitimate.

If there were only one way to interpret the Constitution, we would not need a panel of judges.

It should be noted that even among Conservatives there are differing opinion on which school's method is appropriate. Just like there are differing opinions among Liberals. And of course us Moderates frequently disagree with either side's opinions. :)

[Tchocky]

Should Hillary or Bernie win, well guess will be stuck but hopefully Trump or Cruz are in and will nominate a real Justice.


Ted Cruz is an definitely a Constitutional originalist until he gets to where he probably is not natural-born citizen.

[Mr Quatro]

Judge Judy would be a good choice for the left or right wingers. :o

Most college students already think she is on the Supreme Court anyway :yep:

[Aktungbby]

There are several schools of thought when it comes to interpreting the constitution. They all have their advantages and disadvantages; their proponents and opponents. None is more "legitimate" than any other.



Well... whilst you're dealing with the 'penumbra' of the oft interpreted document https://upload.wikimedia.org/wikipedia/commons/thumb/4/46/Area_light_source_soft_shadow.png/220px-Area_light_source_soft_shadow.png (https://en.wikipedia.org/wiki/File:Area_light_source_soft_shadow.png) I'll deal with the corona:woot: https://upload.wikimedia.org/wikipedia/commons/thumb/a/af/Cerveza_corona.jpg/220px-Cerveza_corona.jpg (https://en.wikipedia.org/wiki/File:Cerveza_corona.jpg)
https://en.wikipedia.org/wiki/Penumbra_(law (https://en.wikipedia.org/wiki/Penumbra_(law))

[Bubblehead1980]

The lawyer is back!

EDIT - How the hell can the Senate be trusted!? We havent't repealed the 17th Amendment!


I never went away, just often too busy to comment on here.This thread piqued my interest. Lawyer? Not yet, I graduate this spring and take the bar not long after. Mock me all you want, I've worked hard and had some serious life obstacles last couple of years.The detractors said I would not make it and I have. Really, back when I first started law school I made a somewhat arrogant statement in this forum regarding I knew a bit more since I was in law school and was mocked by my opponents. While arrogant I was not completely wrong, but it happens.

Yes, I know at times I have nearly lost my "crap" due to obama as he was and continues to be a threat to our republic as long as he is in power.Luckily he is gone in a few months, just hope it is not Hillary.I can probably live with Bernie Sanders as he is unlikely to get 90 percent of his agenda done but is a man of integrity. Hillary would be more dangerous than Obama but will cross that bridge when we come to it. i can live with Cruz but hoping for Trump and even then, I have my reservations about him.

[Bubblehead1980]

I know this is futile of me, but I have to at least make the attempt.

There are several schools of thought when it comes to interpreting the constitution. They all have their advantages and disadvantages; their proponents and opponents. None is more "legitimate" than any other.

It is natural for people to prefer schools that agree with their opinions, but that does not make any particular school more or less legitimate.

If there were only one way to interpret the Constitution, we would not need a panel of judges.

It should be noted that even among Conservatives there are differing opinion on which school's method is appropriate. Just like there are differing opinions among Liberals. And of course us Moderates frequently disagree with either side's opinions. :)

Not futile of you. I do appreciate other views, believe it or not lol.

Well the thing is, "schools of thought" such as the living constitution theory was conjured up to help progressives legitimize their policies and withstand judicial review. because let us be honest here, they won't survive most of the time if in front of an honest Judge/Justice reading constitution as it is.One reason FDR threatened the court and tried his court packing plan was they kept following the constitution and ruling against his "New Deal" schemes, err policies.Only after they felt threatened, did they began to rule in favor. Any theory or "interpretation" that justifies legislating from the bench, is illegitimate. Only legitimate way to change the constitution is the amendment process.

Antonin Scalia has one of my heroes and given his passing, some favorite quotes.


"That’s the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that. The Constitution is not a living organism, it is a legal document. It says something and doesn’t say other things."

"On this day, when we’re celebrating our constitutional heritage, I urge you to be faithful to that heritage – to impose on our fellow citizens only the restrictions that are there in the Constitution, not invent new ones, not to invent the right because it’s a good idea."


Yes originalism is the only legitimate ways to interpret the constitution, I stand by that but appreciate what you said.Why do I say that? Simply saying abide by the document as it is, not what wish it would be. Even when/if my view on an issue conflicts , must go with the constitution.Don't like it? Push for an amendment. That is how it was intended to be. A great quote from Scalia "

“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”


Argument I have with left wingers all the time about Citizens United.While I dislike the real world consequences of the decision when it comes to campaign finance, the decision is constitutionally correct. The court actually did it's job and protected the first amendment. Again, I hate the real world consequences, but that is not their job to consider.

[vienna]

Sri Srinivasan is an interesting possibility and a possible thorn to the GOP. He was approved by the Senate 97-0, a literal unanimous ratification by all the Senate of both parties, one of the few really bi-partisan actions in recent years. If the GOP does go through with its threat of blindly blocking any Obama appointee, they will revive the charges of blind obstructionism and partisanship that cost them quite a bit politically some years back. Given their currently fractured slate of POTUS nominees and the Congressional GOP in-fighting, the last thing the party needs is to resurrect a potentially crippling situation just before the November Election. If Sri Srinivasan is actually nominated, how does the GOP handle the situation without looking like petty, self-interested politicians out only for their own gain and not actually looking out for the good of the country? I, myself, don't think Srinivasan will be nominated; if you think the narrow-minded, racist, "christian" bigots are upset about Jews, Blacks, women, and "non-christian" Catholics being on the Court, watch what happens if Srinivasan, a practicing Hindu gets nominated...

Still, it might be amusing to watch a all those Far-Righter's heads explode, not ot mention the meltdown at Fox News...


[EDIT] I would be remiss in not joining others who have complimented Platapus on his OP. We have come to expect his clear thought, concise analysis, and ability to give reliable cites and we may have come to take it for granted: Thank you, Platapus for the work you put into your OP and the ideas you provided for the rest of us to mull over... :salute:


<O>

[Platapus]

You are most welcome.