Four Steps to Appointing a Supreme Court Justice

[fleur-de-lisa]

http://www.huffingtonpost.com/the-conversation-us/four-steps-to-appointing_b_9236238.html

Step 1: The presidential pick: The first thing to know is that the Constitution of the United States gives the power of nomination to the president. Article II, section 2 provides that the president "shall nominate, and by and with the advice and consent of the Senate, shall appoint ... judges of the Supreme Court." By law, President Obama can nominate whomever he wants to replace Justice Scalia. Appointment is really a three-step process: nomination (by the president), confirmation (by the Senate), and appointment (by the president again). It's somewhere between nomination and confirmation that the going gets tricky.

Step 2: The Senate Judiciary Committee: Once the president has made a choice, the nomination is referred to the United States Senate. Since the early 19th century, this has meant that the nomination will first be considered by a smaller group within the Senate, the Senate Judiciary Committee. The Judiciary Committee currently has 20 members - 11 Republicans and 9 Democrats - and has a three-step process of its own. First, it conducts a prehearing investigation into the nominee's background. Second, it holds a public hearing, in which the nominee is questioned and may give testimony about everything from her judicial philosophy to her stand on abortion. Finally, the committee will "report" its recommendation to the full Senate. The committee can report the nomination with a favorable recommendation, a negative recommendation or no recommendation. If a majority of the committee opposes confirmation of the nominee, it can technically refuse to report the nomination, therefore preventing the full Senate from considering the nominee at all. This hasn't happened since 1881, and would deviate from the committee's "traditional practice." But that does not mean it is out of the question. The chairman of the committee, Republican Senator Chuck Grassley, has already said that, in his view, the Senate should not act on a Supreme Court nomination before the presidential election in November.

Step 3: The full Senate: Let's assume that the committee does report the nomination to the full Senate. There are 100 senators in the United States Senate - two for each state. Currently, the Senate is majority Republican, with 54 senators to the Democrats' 44, with two independents for added flavor. This is where it gets interesting, because the Senate follows rules so arcane and incomprehensible that otherwise reasonable writers freely refer to them as "insane." In order to consider the nomination, the Senate has to enter a special "executive session." This is typically achieved by having the Senate majority leader ask for unanimous consent to have the Senate consider the nomination.

Step 4: The vote: But let's assume that the nomination does emerge from the Judiciary Committee, makes it to an "up or down" vote and weathers any filibuster attempts. A vote to confirm then requires a simple majority of the senators present and voting. If all goes well, the secretary of the Senate will transmit the confirmation vote to the president. The president then can breathe a sigh of relief and sign a commission appointing the person to the Supreme Court. But I wouldn't count on it.

The loophole: If the traditional 4-step process fails, there is one additional possibility open to the president. Article II of the Constitution also says that the president "shall have power to fill up all vacancies that may happen during the recess of the Senate" and that the appointment can last until the end of the Senate's next session - in this case, until late 2017. A recess appointment would mean that the president could simply fill Justice Scalia's seat temporarily without any input from the Senate. As it happens, the Senate is currently in recess until February 22. What happens next is anyone's guess.

[PoliticAverse]

1. "The loophole". The Supreme Court actually decided a case during Obama's term...

limiting the recess appointment ability of the President (9-0 decision).
The President has apparently also specifically ruled out a recess appointment
(see: http://www.democraticunderground.com/10141349252 )

Supreme Court case:
NLRB v. Noel Canning:
https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning
http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-noel-canning/

[onenote]

7. Yep. I wish people would just stop talking about recess appointments.

There has been an astounding amount of speculation (in the media as well as here at DU) regarding the use of the recess appointment clause by people who don't seem to have read the Canning decision and/or can't count. The decision held that a recess of less than 10 days is presumptively too short to trigger the recess appointment clause. While I've seen some say the current recess, which began on the 12th and ends on the 22nd is ten days, it's not. First, a legislative day is a day in which the Senate is in session and it was in session on the 12th before adjourning and it will be in session again on the 22nd. So the number of days in which the Senate won't be in session during this recess is nine. Plus, the Canning decision acknowledged that in counting days for purposes of the Adjournment Clause, Sundays don't count. So there's a strong case this recess is only 7 days.

It would be insane for the President to use the recess appointment power in a situation where there is a strong case that it would violate the Constitution as interpreted by a unanimous SCOTUS. It would change the debate from one about repub obstructionism to one about the President's disregard for the Constitution and SCOTUS precedent.

[Gregorian]

9. Excellent information. .

I recommended this thread because of this discussion. I'm not familiar with it, but have been watching.

[Kelvin Mace]

2. Since McConnell has made it quite clear

that he will NOT allow a vote, a recess appointment fits the bill.

[FBaggins]

3. Has he said that he won't allow a vote?

They could just vote "no" since they hold the majority.

[Kelvin Mace]

5. Pretty clear about it.

Senate Majority Leader Mitch McConnell said the Senate should not confirm a replacement for Supreme Court Justice Antonin Scalia until after the 2016 election — an historic rebuke of President Obama’s authority and an extraordinary challenge to the practice of considering each nominee on his or her individual merits.

http://www.politico.com/story/2016/02/mitch-mcconnell-antonin-scalia-supreme-court-nomination-219248

[FBaggins]

13. That does appear pretty clear - but not how you described it.

They hold the majority in the Senate. They can simply vote "no" to anyone who is unacceptable to them. They don't have to block a vote.

[SickOfTheOnePct]

4. They're not formally in recess n/t

[Kelvin Mace]

6. They are,

and the National Review thinks he can make an appointment.

http://www.nationalreview.com/article/431313/supreme-court-recess-appointment-will-president-obama-do-it

[onenote]

8. The National Review article is mistaken

to the extent it suggests the current recess is long enough to trigger the recess appointment clause. And the professor who opined that this recess is ten days long is clueless.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=7615242

[Kelvin Mace]

11. Just quoting the "noted experts" on the right

Personally, I think he should make ALL of his appointments now, fill the benches. By the time the lawsuit challenging it is heard, the elections will have taken place. In the meantime, we can undo a LOT of damage.

[onenote]

12. Making recess appointments in the face of the Canning decision would be a terrible idea

He would be roundly criticized and it would hurt our Presidential candidates who would be put on the spot by being asked whether they agree or not.

[former9thward]

10. The Senate is not in recess.

They held a pro-forma session today at 11:00 a.m.

https://www.congress.gov/congressional-record/2016/02/12/senate-section/article/S887-5