WASHINGTON, D.C. (March 16, 2016): President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court comes too late, as his nominee has little chance of being confirmed.

Unfortunately, the President missed his chance to make a liberal recess appointment – a move which would have helped decide many key cases this term his way, and pressured Republicans to move quickly to confirm a more moderate nominee later – says public interest law professor John Banzhaf.

 

Merrick Garland
Merrick Garland – Screenshot via CNN Youtube

Banzhaf was only one of many legal scholars who noted that Obama could have made a recess appointment during that brief period following Justice Scalia’s death when the Senate was in a recess until February 22, under an adjournment resolution adopted on Friday. The adjournment resolution provided for “pro forma sessions only, with no business being conducted on the following dates . . .”

So, a recess under which no business was to be conducted would arguably permit Obama to make a recess appointment under the Supreme Court’s 2014 decision. As law professor Michael Froomkin said then, “For the next few days – and only for the next few days – President Obama (arguably) has the right to make a recess appointment to the Supreme Court” – citing no less an authority as Lyle Denniston.

Since such an appointment could last almost two years (until the end of the next session of Congress in late 2017), it would have two important and immediate effects, says Banzhaf.

First, it would help ensure that many of the most important cases before the Supreme Court, which are now expected to result in 4-4 tie, will be decided the way Obama himself would probably wish.

Moreover, cases decided by a 4-4 tie vote would not create any legal precedent, unnecessarily leaving important legal issues undecided for a lengthy period of time.

Also, and perhaps more importantly, if Obama had used his recess appointment power to install a very liberal justice to the High Court, it would have put intense pressure on Senate Republicans not only to hold prompt hearings on any new nominee such as Merrick Garland, but to actually confirm his nomination, since that would probably result in decisions more to their liking, says Banzhaf.

Merrick Garland – That missed opportunity – to make a recess appointment – may go down in history as one of the most important decisions of Obama’s term, says Banzhaf, noting how many very important cases are already before the Supreme Court.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School