Can the President use a recess appointment to appoint a Supreme Court Justice?
October 26, 2004 9:00 PM   Subscribe

Can the President use a recess appointment to appoint a Supreme Court Justice?
posted by mhaw to Law & Government (12 answers total)
from what I heard on the radio, yes, it's legal. Never been done, though. Kinda gives me heart palpitations, since obviously the current Prez is capable of brushing that aside.
posted by mwhybark at 9:21 PM on October 26, 2004

CAN he? maybe theoretically. The constitution is (of course) pretty vague about the situation, and I don't think it has been done before so there is no precedent.

I cannot imagine the political nuclear war that would result from this.

Congress can also impeach and remove a SCOTUS justice, which is even more rare than impeaching a president. But they might do it in this case.
posted by falconred at 9:22 PM on October 26, 2004

Obviously this would be a political bombshell to the nth degree, but given the Chief Justice's current health, a vacancy could be imminent, and if Bush becomes a lame duck next week anything is possible...
posted by mhaw at 9:31 PM on October 26, 2004

Never been done, though.

Earl Warren. Among others.
posted by ROU_Xenophobe at 9:47 PM on October 26, 2004

Should Rehnquist die, retire, or become disabled, there is no constitutional or statutory urgency to replace him. 28 U.S.C. § 3 provides:

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

Justice Stevens, being the most senior associate justice, would perform the duties of Chief Justice until a new one is confirmed. This would include presiding over an impeachment trial and administering the oath of office to the next President (though any federal judge can do the latter.)

Although the number of Supreme Court justices is set at nine, only six is required to constitute a quorum. See 28 U.S.C. § 1. Thus, if four justices retire, and the Senate fails to confirm one new one, the Court ceases to function.

There's no per se ban on lame duck appointments, but it's politically dangerous. Any lame duck appointment would almost certainly be filibustered by the Senate Democrats. You need 60 votes to overcome a filibuster. Most likely, a new justice would not be confirmed before the next inauguration.

In the event a new justice is confirmed quickly, and the election is thrown into dispute (again), the new justice would almost certainly have to recuse himself.
posted by PrinceValium at 9:51 PM on October 26, 2004

FWIW, no projection I have seen posits either the Senate or the House swinging Dem after the election. I haven't been scouring the web for House or Senate projections, so I could be totally wrong.

Assuming both wings remain GOP, isn't a filibuster moot, if the GOP maintains party discipline?

Furthermore, the use of the word "nuclear" to describe this eventuality is also the word used on the radio report I was half-listening to. Since no actual nukes would be detonated, what would the real consequences of a lame-duck appointment, or, worserer, a re-elected recess appointment with GOP control of both houses?
posted by mwhybark at 10:56 PM on October 26, 2004

just noticed PV partially answered some of the above. So here's a new one: why would the hypothetical justice have to recuse him/her-self? What would the consequences be if they did not? Assume GOP / GOP again.
posted by mwhybark at 10:59 PM on October 26, 2004

5 bucks here (I have PayPal) say that, if Bush loses (again), and Rehnquist is really sick, he will be replaced before Kerry takes the oath of office. they won't give newly-inaugurated President Kerry a nice fat chance to replace Rehnquist with an unsinkable-in-the-Senate centrist-progressive nominee like, say, Ruth Bader Ginsburg

they'll find a way. like they did with Gitmo and the Geneva Convention. rules can be bent.
posted by matteo at 3:15 AM on October 27, 2004

Since 1791, 15 Supreme Court Justices began their tenure with a recess appointment, the most recent being Justice Potter Stewart in 1958.

The Supreme Court has not yet weighed in on whether recess appointments can be made to the Supreme Court. You can see where this is going.

why would the hypothetical justice have to recuse him/her-self?

Because the political consequences of not doing so would be staggering; outweighing Bush v. Gore by a magnitude of four hundred. The questions about legitimacy would be so pervasive that it would really impede Bush's ability to do his job, and political unrest in this country would be massive. You may be right, though: anything can happen, and when United States v. Nixon (the "Nixon Tapes Case") was decided, three Justices sitting on the Court had been appointed by Nixon, including the Chief Justice, Warren Burger. Of those three, only Rehnquist recused himself. Of course, the decision was unanimous against Nixon, so any claim of bias was mooted.
posted by PrinceValium at 5:58 AM on October 27, 2004

Article II, section 2 of the Constitution says "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

From what I understand, the President could make a recess appointment. The new justice would start serving immediately. He'd serve for two full years before confirmation was necessary, but by then he'd be an entrenced incumbent. At least, that's how it looks to me.
posted by MrMoonPie at 6:57 AM on October 27, 2004

I think it would piss people off, but I'm not sure that it'd be politically any more severe than Marbury v. Madison.

Oh, wait, that was a real cock-knocker, wasn't it?
posted by waldo at 8:01 AM on October 27, 2004

Even as a minority, only 41 votes are necessary to sustain a filibuster. That's how the Dems blocked a few of Bush's judicial appointments and bills over the past four years.
posted by billsaysthis at 1:36 PM on October 27, 2004

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