Nearly nine months have elapsed since Antonin Scalia’s death, and Republicans have doubled and tripled down on their refusal to hold hearings. Now Republicans are starting to suggest that they would block any Supreme Court appointments by Hillary Clinton during the entirety of her presidency. This is in addition to the long standing failure of Republicans to consider President Obama’s appointments to the Federal District and appeals courts, blocking tactics which we can reasonably expect will continue into the administration of President Clinton.
If, as many polls seem to indicate, Hillary wins the election, and particularly if the Democrats win control of the Senate, there is one move that she could make which would greatly increase her bargaining power: find the most liberal judges in America, and when the Senate enters recess, recess apoint them to fill each vacancy. Then get a list of somewhat more moderate justices, and nominate them for confirmation by the Senate.
“[t]he 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” (Article II, §2, clause 3)”
Recent Supreme Court precedent has somewhat restricted when the power of recess appointments can be used. But if the Democrats control the Senate, they will also have wide lattitude to recess the Senate intentionally so President Clinton can make recess appointments.
Fourth, [...] the decision left it largely up to the Senate to decide when it does take a recess[...]
There is some precedent for using recess appointments to fill Supreme Court vacancies. The last time this occured was with Justice Potter Stewart in 1958. Taking this approach would create the perfect dilemma for Republicans. They could express all the fake outrage they want about the move, but the longer they waited to confirm Hillary’s appointment to the Courts, the more liberal court precedents would pile up. This would be particularly true at a time when one new liberal justice would be all it takes to markedly change the direction of the currently evenly divided Supreme Court, and when there are enough vacancies on many Federal Circuit Courts to shift the ideological balance as well.
A downside of the recess appointments is that they are not permanent, they last about two years. But Hillary is going to be in office for four years. This would be a way for her to begin her administration on a very strong footing and increase her bargaining power with the Republicans (they are not going to want a super liberal judiciary setting precedents that take decades to overturn). And if Republicans are serious about trying to block all of Hillary’s nominations anyway, to paraphrase one noted commentator, what the Hell would she have to lose?