- The Washington Times - Monday, February 15, 2016

The window is still open on President Obama’s option of replacing the late Supreme Court Justice Antonin Scalia with a recess appointment, although the White House says the president won’t pursue such an antagonistic course.

The Senate is in the middle of a 10-day recess until Monday, giving Mr. Obama a chance to bypass Congress and install a successor quickly. Given Senate Republicans’ vow to block a nomination until the next president takes office in January, a recess appointment could be Mr. Obama’s only real opportunity to get a liberal justice on the bench.

Although prospects appear remote that Mr. Obama will get a nominee on the Supreme Court through the traditional process, the option of a recess appointment comes with major drawbacks such as igniting the Republican base in a presidential election year.

If a justice is installed through a recess appointment, he or she could serve only through the end of the next session of Congress — the end of 2017, at the latest.

Also, the Supreme Court narrowed the president’s temporary appointment power in a 2014 ruling that overturned Mr. Obama’s recess appointments to the National Labor Relations Board. In that decision, the court said the Senate has wide discretion in deciding when it’s not in session, allowing it to avoid a recess by taking even the most trivial action with only a few senators in attendance.

The ruling “gave the Senate more control over when it does recess and how long the recesses last,” veteran Supreme Court journalist Lyle Denniston wrote on SCOTUSblog.

White House officials say they don’t expect Mr. Obama to make a recess appointment and that he will wait until the Senate is back in session next week before nominating a successor to Justice Scalia and pushing for a confirmation vote.

White House spokesman Eric Schultz said Mr. Obama is “deeply engaged” with his legal team on reviewing candidates but won’t nominate anyone this week.

“The president will take the time and rigor this process deserves before selecting a nominee,” he said.

Noting that 4-4 splits on the nine-member court leave lower courts’ rulings intact, Mr. Schultz said, “We need a fully staffed Supreme Court.”

Justice Scalia, 79, died Saturday of an apparent heart attack while on a hunting trip in west Texas. A leading conservative voice, he served on the high court for nearly 30 years.

Some Obama insiders say Senate Majority Leader Mitch McConnell, Kentucky Republican, is handing Democrats an election-year advantage by making a blanket vow to oppose any nominee before the president even selects a name.

Former Obama senior adviser Dan Pfeiffer said on Twitter, “The smarter GOP play: Be skeptical now and wait to oppose a specific nominee. Pavlovian opposition makes the D argument so much easier.”

There is precedent for a president installing a Supreme Court justice without the Senate’s consent. In 1956, an election year, President Eisenhower used a recess appointment to put William Brennan on the bench. Brennan was confirmed in 1957, after Eisenhower won a second term.

Republicans say it’s standard practice not to confirm a Supreme Court justice in an election year. The only exception in modern times is Justice Anthony M. Kennedy, who was appointed and confirmed in 1988 to fill a vacancy that arose in 1987.

Justices usually choose not to retire in an election year, and a death in office is relatively rare. The last justice to die in office was Chief Justice William H. Rehnquist, who died of cancer at age 81 in 2005. Before Rehnquist, the last justice to die in office was Robert Jackson in 1954.

Shannen Coffin, former general counsel to Vice President Dick Cheney, said there is “simply is no precedent in modern times for filling a vacancy that arises in an election year.”

“You have to go back to Benjamin Cardozo in 1932 to find a similar circumstance,” he wrote for National Review Online.

The political climate then was unquestionably different. Justice Cardozo was nominated by President Hoover, a Republican, in February 1932 to replace the retiring Oliver Wendell Holmes Jr. The Senate confirmed Cardozo a few weeks later by a unanimous voice vote, a lightning-fast bipartisan action unthinkable in today’s Senate.

In his first term, Mr. Obama made 32 recess appointments, a pace less aggressive than those of some of his predecessors. Ronald Reagan made 232 recess appointments, followed by George W. Bush (171) and Bill Clinton (139). George H.W. Bush made 78 recess appointments in one term.

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