Installing Alito to the Supreme Court

November 1, 2005 9:45 AM

With the Dem's threatening to fillibuster Bush's new nomination for the Supreme Court, can Bush just wait until Christmas time when Congress takes a recess and install Alito with no confirmation vote? I have heard of similar things as an option in past political situations, and I'm assuming that somewhere in our 200+ year history something like this has been done. Unfortunately, I never really paid attention to the actual workings of the whole thing. What are the actual rules/laws as to what the President can do when Congress isn't in session. Specifically for the things Congress would 'normally' vote on or approve had they been in session.
posted by whoda to Law & Government (20 answers total)

The president can do a recess appointment, but those will only last a couple years. That's how John Bolton got his U.N. Gig.

If bush did that, it would suck for the conservative movement, because Alito would only have a couple years on the bench, and the next president would get to make the lifetime appointment.
posted by delmoi at 10:01 AM on November 1, 2005

Sounds like you're talking about "recess appointments". They're spelled out in Article II, Section 2 of the Constitution, and the nominee has to be confirmed before the end of the Congress (i.e., the biennial election-inauguration cycle).

The first major recess appointment was Washington putting John Rutledge in as Chief Justice in 1795; he was never confirmed. They've been controversial, as when Bush put John Bolton as UN Ambassador during a recess, but the Senate (eventually) gets its say in the matter.

More info, as usual, in Wikipedia. Google gives this Slate article which I haven't read but on glancing over, seems pretty clear.
posted by SuperNova at 10:02 AM on November 1, 2005

Under the Constitution's "Recess Appointments Clause" (Article II, Section 2, Clause 3)...

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.

...the president has the power to temporarily fill any official vacancy without approval of the Senate when Congress is not in session, including Supreme Court Justices. Anyone appointed in such a manner will have to leave office when the Senate's next session expires unless the Senate votes to confirm their appointment.

More here or here.
posted by RichardP at 10:02 AM on November 1, 2005

Speaking from a purely practical point of view, that would be fucking gold for Democrats. Even Republicans tend to resent recess appointments, and there would just be an unspeakable battle royale...
posted by klangklangston at 10:05 AM on November 1, 2005

Actually, if memory serves, it's the next term of Congress who would have to confirm a recess appointment. This would be a big gamble that more conservative Republicans get sent to the Senate in 2006. Furthermore, Senators up for re-election in 2008 will be wondering just how conservative they want to look in light of the fact that they will not have Presidential "coat-tails" to help them get votes. That is to say nothing of them wondering "how conservative a country do I want to live in." After all, we are talking about a Supreme Court Justice with a lifetime term, not an Ambassador to Luxumberg or something like that.
posted by ilsa at 10:10 AM on November 1, 2005

As to the general question of what the president can do when Congress is not in session, there's also the Pocket Veto, wherein the president can veto a bill without Congress having a chance to override it.
posted by epugachev at 10:13 AM on November 1, 2005

Looking around with Google, I found a report prepared by the Congressional Research Service for congress, titled "Supreme Court Appointment Process: Roles of the President, Judiciary Committee, and Senate" and made available via the United States Department of State Foreign Press Center. It covers the Supreme Court appointment process in detail, including the possibility of a recess appointment. It mentions that:

On twelve occasions in our nation’s history (most of them in the nineteenth century), Presidents have made temporary appointments to the Supreme Court without submitting nominations to the Senate. These occurred when Presidents exercised their power under the Constitution to make “recess appointments” when the Senate was not in session. Historically, when recesses between sessions of the Senate were much longer than they are today, “recess appointments” served the purpose of averting long vacancies on the Court when the Senate was unavailable to confirm a President’s appointees. The terms of these “recess appointments,” however, were limited, expiring at the end of the next session of Congress (unlike the lifetime appointments Court appointees receive when nominated and then confirmed by the Senate). Despite the temporary nature of these appointments, every person appointed during a recess of the Senate, except one, ultimately received a lifetime appointment to the Court after being nominated by the President and confirmed by the Senate.

posted by RichardP at 10:15 AM on November 1, 2005

This kind of dodges your question, which is an interesting one - but it's also mostly been answered.

The real problem here is that the "Nuclear Option" can still be used, and the Reps will probably exercise it and crush any filibuster. Alito has too much support from republicans for them to allow a filibuster, so even if the Dems try it, it probably won't happen.

This is unfortunate, as I see our supreme court going in a scary, scary direction.
posted by twiggy at 10:44 AM on November 1, 2005

Everyone keeps talking about eh "nuclear option." I get that it involves changing the rules to disallow filibusters. Someone please define it.
posted by dpx.mfx at 10:52 AM on November 1, 2005

dpx.mfx -- the "nuclear option" was first raised this summer over the appointments of two fairly conservative federal judges. It would filibusters on matters of judicial appointment to be broken by a simple majority, by changing the Senate rules. See http://en.wikipedia.org/wiki/Nuclear_Option for a really good summary.
posted by electric_counterpoint at 11:06 AM on November 1, 2005

It's not changing the Senate rules, it's ruling on a point of order that judicial filibusters themselves are unConstitutional (which only requires a simple majority).

Such a vote would presumably irrevocably remove the filibuster from Senate judicial proceedings, so the question is whether filibusters in general are more valuable than a particular candidate.

It's not clear to me that this is a smart move for the Republican majority, even if it does score them an additional seat on the SC. On the other hand, they may just be assuming that any future court will continue to hand them elections, and they may be right.
posted by Caviar at 11:35 AM on November 1, 2005

The other thing that would happen if we had a strong opposition party is that if the Republicans disallow fillibusters on the judicial nominations, a fillibuster can be applied to EVERY other piece of legislation, thus effectively shutting down Congress. The Republicans may have a nuclear option, but they don't have first strike capability.
posted by klangklangston at 11:57 AM on November 1, 2005

Filibustering all other legislation is not a winning strategy, because Republicans can just point to Democrats as the "do nothing" party. And that's already supposing the highly unlikely proposition that individual Democratic Senators have the intestinal fortitude to stop the flow of pork to their own states and favored interest groups, which a filibuster-it-all strategy would entail.
posted by MattD at 12:03 PM on November 1, 2005

The nuclear option is the Republicans way of changing the rules in their favour. There's already a constitutional way to defeat a fillibuster - a 2/3 majority. It very much seems to me that earlier politicians wanted to make it easy to make small changes in the country but wanted big changes to require a big buy in.
posted by substrate at 12:33 PM on November 1, 2005

Umm ... all the above is usually true, except for one thing - Justice O'Connor did NOT resign - there is currently NO vacancy. What she did was notify the President that she would retire effective upon the nomination and confirmation of her successor.

So in this case a recess appointment is not an option for the President.
posted by WestCoaster at 1:19 PM on November 1, 2005

There's already a constitutional way to defeat a fillibuster - a 2/3 majority.

First, it's a 3/5 majority. Second, it's not a constitutional matter--that's part of the senate's internal rules, not part of the constitution. (I suppose you could technically say it's constitutional inasmuch as it's not prohibited by the constitution, but that's misleading at best.)
posted by DevilsAdvocate at 2:02 PM on November 1, 2005

There's already a constitutional way to defeat a fillibuster - a 2/3 majority.
Or, ingrained in the rules governing debate, 60 votes to end a particular filibuster. Plus you wouldn't have to get 3/4 of the states onboard.

One thing about filibuster is it's not in the Constitution at all. It's just a part of the "rules of the house" that get set every session, and can be changed at will by majority vote.

According to the Wikipedia article on Filibuster, the majority party can beat the filibuster by "leav[ing] the debated issue on the agenda indefinitely, without adding anything else to the agenda." I'm not sure why the GOP hasn't done this in order to paint the Dems as obstructing all business, not just the judiciary, which comparatively few Americans *really* care about.
posted by SuperNova at 2:13 PM on November 1, 2005

Ah, should've previewed. My bad.
posted by SuperNova at 2:14 PM on November 1, 2005

One point not usually understood: by Act of Congress, an official named as a recess appointment is not permitted to draw a salary.

Westcoaster may be right, but Justice O'Connor has the option at any time to simply retire outright.
posted by megatherium at 4:58 PM on November 1, 2005

In politics, little is extremely straightforward:

the Pay Act, 5 U.S.C. § 5503 (2000), by which Congress has sought to bar the pay of recess appointees in some circumstances, [does] ... not apply ... to a vacancy that first arises during a recess and is filled before the Senate returns.

So if O'Connor were to change her mind and actually resign (or another Justice were to resign or die) while the Senate was in recess, then the President could appoint someone who would be paid.
posted by WestCoaster at 10:42 PM on November 12, 2005