Filling a vacancy in the SCotUS
 

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 can appoint a Justice immediately and without Senate confirmation under some very special circumstances.

Article 2 section 3 of the US Constitution states

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

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:

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:

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.

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

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.

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.

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:

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

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.

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)

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.

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.

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?