May It Please the Court … but Mostly the Senate

Mar 9, 2016 | Politics


Justice Scalia’s recent passing has created a political hailstorm, bringing the third branch of government into the heat of electoral primary politics. Earlier this month, President Obama announced via SCOTUS blog his intention to fulfill his responsibilities as the commander-in-chief and nominate a justice to the Court, saying that his nominee would have “a sterling record…a deep respect for the judiciary’s role…an understanding of the way the world really works” [1]. Republicans’ stated opposition to any nominee has created a unique policy challenge that can be addressed through Constitutional powers wielded by the President, but a long-term solution to the Court’s vacancy will be much more difficult to reach.

Learning from the Past

Article II of the Constitution requires federal judges and executive appointments to be confirmed with the “advice and consent” of the Senate. The Constitution also notes that when vacancies arise during a recess of the Senate, the President can fill them via commissions that expire at the end of the next session. Presidents have previously used the recess appointment power to fill several vacancies, with a recent notable example being Richard Cordray’s appointment as Director for the Consumer Financial Protection Bureau (CFPB) in 2012, his reappointment in 2013, and final Senate confirmation in July of 2013.

Recess appointments for the Supreme Court are not unheard of but haven’t been used since the Eisenhower Administration. In October of 1953, Eisenhower appointed Earl Warren as Chief Justice to fill the vacancy left by the death of the former chief, Fred Vinson. Months later in March 1954, the Senate confirmed his appointment.  Eisenhower later nominated William Brennan and Potter Stewart via recess appointments to the Court with subsequent Senate confirmations in 1956 and 1958, respectively.

The recess appointment tool could help President Obama fill the vacancy on the high court, but it would need to be tailored specifically to meet recent parameters set by the Supreme Court itself. After Obama used this power to fill three vacancies on the National Labor Relations Board in 2012, the Court ruled unanimously that the appointments were unconstitutional because the Senate was not actually in recess over their twenty-day break. Justice Breyer’s majority opinion highlighted that the Senate met in pro forma sessions and thus the appointments did not meet the constitutional requirement of taking place during a recess.  Breyer stated bluntly that “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is.”

To effectively handle not only the Supreme Court vacancy but also the growing backlog of executive appointments and federal judges, the President retains the ability to set recess appointments without the advice or consent of the U.S. Senate [2]. While powerful, the appointment here provides only a temporary fix for a long-term problem, as the appointments would eventually expire without retroactive Senate approval.  

Senate Opposition

As Chair of the Senate Judiciary Committee, Senator Grassley (R-IA) stated that there would be no consideration of a Supreme Court nominee until the next President takes office in 2017. Despite harsh criticism from congressional Democrats and presidential candidates, Grassley’s push to wait for a new President to fill the Court’s vacancy is not an entirely unheard of position. During the 1992 nomination of Clarence Thomas, then-Chairman of the Senate Judiciary Committee Joseph R. Biden voiced his opposition to the confirmation and instead pushed for the next administration to fill the vacancy. Similar remarks were made by Senator Schumer in 2007, noting that the Senate should “reverse the presumption of confirmation” to the high court and instead only fill vacancies to the Court in extraordinary circumstances, should vacancies arise.

The Senators’ comments not only reflect the political nature of the confirmation process, but also the long-term importance of filling the vacancies of the nation’s highest court. An appointee with more left-leaning ideologies would have the ability to defend and uphold the more progressive policies of the Obama administration for decades, while a more conservative jurist can just as easily reverse the decisions and change the court’s direction on same-sex marriage, immigration, affirmative action, and environmental regulation.

While recess appointments can help Obama bypass a Senate in opposition, the Republican majority can also meet in pro forma sessions and avoid declaring a recess to hinder the appointment. Another option available to the Administration is to wait, allowing the next president to fill the position. While also a plausible but controversial decision, the effects of a prolonged court vacancy could be detrimental to the Obama administration’s legacy since any tie decision (a 4-4 ruling) would automatically uphold rulings from the lower court. This could lead to powerful rulings on teacher pay into unions, nonprofits declaring exemptions to help pay employees’ birth control, state abortion laws, and affirmative action.


The recess appointment remains a plausible solution for the president in his search for a Supreme Court appointee but is only a temporary fix subject to the next Congress. As the Administration works to find a long-term fix, it seems likely the election cycle and the possibility of another Democratic administration will drive Senate Republicans out of their hard-line position to conduct a hearing on an Obama nominee before the November elections [3].   

[1] ‘Blogger-In-Chief,’ or ‘BLOTUS’ were floated as presidential nicknames after this post.

[2] At least thirty federal judges and several other executive agency appointments await Senate confirmation, some of whom have been waiting for over a year.  

[3] There are fourteen Republican Senators up for re-election in November including Senators Grassley (R-IA) and Vitter (R-LA), both members of the Senate Judiciary Committee.

1 Comment

  1. Dan Durak

    It appears that the Senate will begin to move on other Obama nominees, especially after they have ‘survived’ their state primary matches. For example, Senate Banking Chairman Richard Shelby (R-AL) proceeded with the vote on Adam Szubin today (see: for the position of Treasury undersecretary for terrorism and financial crimes. In addition to the Senate’s confirmation of Education Secretary John King, I think we will see more movement on executive appointees in the coming weeks while public opinion will help shape the Senate’s action (or inaction) on a SCOTUS nominee (see this Washington Post article on public opinion in regard to the Court’s vacancy: