Obama Can and Should Put Merrick Garland on the Supreme Court

[red dog 1]

New Republic
December 16, 2016
By David Dayen


Come January, President Barack Obama will be consigned to the sidelines as Donald Trump occupies the Oval Office and begins his work of dismantling his legacy.
But there is one action Obama could take on January 3, 2017 that could hold off some of the worst potential abuses of a Trump administration for up to a year.
Obama can appoint his nominee Merrick Garland to the Supreme Court on that date, in between the two sessions of Congress.

Here's how it would work.
Article ll, Section 2 of the Constitution states,
"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate,"
This has been used for Supreme Court vacancies before -- William Brennan began his court tenure with a recess appointment in 1956.
Any appointments made in this fashion expire at the end of the next Senate session.

So a Garland appointment on January 3 would last until December 2017, the end of the first session of the 115th Congress.

More:
http://newrepublic.com/article/138787/obama-can-put-merrick-garland-supreme-court

[procon]

1. But the Republicans don't actually have an official Recess anymore.

They simply have a queue of junior senators scheduled to show up at the Senate once every three days, officially gavel open the session for one minute of work and then adjourns... lather, rinse, repeat.

McConnell has been orchestrating this sideshow since Obama was sworn in, blocking more than 100 judicial and regulatory nominees, including Supreme Court nominee Merrick Garland.

[Fast Walker 52]

2. Ah, thanks... figures the fuckers would do something like that

[red dog 1]

7. The "once every three days" sessions are referred to as..

..."pro forma sessions."


(From the New Republic article)

(pro forma) sessions have the practical effect of keeping the Senate active, therefore blocking the recess appointment power.
But even the Court's most conservative members acknowledged that a President CAN make recess appointments during "inner-session" recesses - -such as the break between the first and second year of a Congress, or the break between outgoing and incoming Congresses.

[SickOfTheOnePct]

14. SCOTUS has ruled

that the recess has to be at least 10 days.

http://www.scotusblog.com/2014/06/court-strikes-down-recess-appointments-in-plain-english/

[kudzu22]

3. There won't be a recess.

They'll keep one senator there in pro forma session. Also, Jan 3rd at noon is the start of a senate term, so they are not in recess then. There's also the issue that Garland is not technically filling a "vacancy". It's tradition that there are nine justices but it is not required. There used to be only six. So, if Obama tries this then Trump will just expand the court and appoint a bunch of right-wing justices. We don't want to start that kind of arms race.

So, nice idea but.....no.

[red dog 1]

8. That's not true!

See reply # 7

[Bettie]

4. He won't

No one will do a damned thing.

And we'll end up with a SC that will void even the bill of rights, 'cept for that second amendment.

[madinmaryland]

5. I would say that the 2A will be on the table, as *Rump will be wanting

to make sure that Democrats do not have access to weapons. Only the Brownshits of the Repubican Party will have access to guns. Yes, it will be a second amendment for angry old white men who pledge allegiance to the Disunited States of *Rump.

[Bettie]

9. Yeah, you're probably right about that

they'll make sure that there is a loyalty oath involved.

I'm also expecting zero pushback when Twittler declares himself president for life.

[lastone]

10. This should happen but

A hundred bucks says it doesn't.

[benld74]

11. DO IT!!!

[AlexSFCA]

12. filibuster

My understanding is that democrats can filibuster all SC appointments cause republicans don't have 60 votes in the senate. If true, then that what they should do so we'll have 8 justcies indefinitely. Kennedy is likely to side with us on a number of issues. Democrats can use precedent of blocking hearings for Garland as a reason for filibuster.

Democrats need to make it clear that Garland is the only nomination they'll support.

[Crepuscular]

13. They can

until the Turtle invokes the Nuclear Option and then the filibuster is dead, like it is for all of the other appointments other than SC, due to Reid previously playing that card. Garland is not going to be a Supreme Court Justice.

[red dog 1]

16. + 1

Get ready for Supreme Court Justice Giuliani to be easily confirmed.

[uponit7771]

19. let them kill it then, they're going to do it anyway... let them bust their best pair doing this

... and not give in to a damn thing else afterwards

[Retrograde]

15. The Democratic senators should bring up Garland at every confirmation hearing

no matter how big or small the office. Until there's a vote on Garland there should be no vote on any other nomination - until the end of Trump's term.

Yeah, they'll be overridden, but they should take the high ground anyway.

[red dog 1]

17. "Until there is a vote on Garland there should be no other vote on any nomination"?

Because of Comey, Putin & GOP voter fraud (including "Crosscheck&quot ,
the Democrats by themselves will have no way to stop ANY of Asshole Trump's nominations.

The only possible way for Garland to be confirmed to the SCOTUS is for Obama & the Dems to get him on the Court for 1 year; and that HAS to be done on January 3rd, and it would not be unconstitutional.

Unfortunately, though, I think President Obama lacks the backbone for such action,

[tritsofme]

18. Very silly, the GOP could easily defeat this scheme, making the appointment last only 1 day

There is nothing in the Constitution that says a session of Congress must last one year, assuming Garland was appointed during the adjournment, Republicans in Congress could respond by opening the new session of Congress and then proceeding to adjourn sine die, having the 2nd session start right then and making Garland's recess appointment expire. And this is all assuming that such recess appointments are even possible after the Supreme Court ruling a few year sback.