Daily Kos

Disquieting Thought: Recess SCOTUS Appointment?

by BruceK

Fri Jul 01, 2005 at 08:28:01 PM PDT

I just had a nasty thought.

There's been all kinds of talk about Bush forcing Bolton on the UN via a recess appointment.  But what if he tried the same thing for the Supreme Court?

I know it sounds very silly, but hear me out:

Point one: The current Administration is not known for doing things that will garner bi-partisan support.

Point two: With attempts at the obliteration of Social Security and the elimination of the filibuster, the Administration has shown that even if they make something an absolute priority, that doesn't mean it's going to get through Congress.

Point three: It's nowhere near inconceivable that something in the near future - a downturn in Iraq, a financial meltdown, a partisan political play blowing up in the Administration's face, or maybe a strategically timed indictment in the Plame case - will leave the Administration without the political capital to get a Court nominee of their choosing through the Senate.

Point four: Defying the Senate and putting a radical, controversial nominee on the Court may be the only way for Bush to save capital with the religious reactionaries.  And even if the appointment is only for one Court term, there may be a calculation that the next time the nominee is placed before the Senate, the Administration could point to the nominee's service as a "provisional" member of the Court.

If the blues hold together and the reds splinter over the next Court nominee, then we may see a stunt like that.

Any thoughts?

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  •  It wouldn't happen (4.00 / 4)

    O'Connor's resignation is conditional upon her replacement being confirmed by the Senate, i.e. no recess appointments.

    by ajwagner on Fri Jul 01, 2005 at 08:30:55 PM PDT

    •  Thank god (none / 0)

      This diary freaked me out for a second.

      John McCain: Healthcare for kids? Not in the Bush-McCain America.

      by bosdcla14 on Fri Jul 01, 2005 at 08:32:59 PM PDT

      [ Parent ]

    •  Oops. (none / 0)

      I missed that.  Sorry for the scary tone, but it might bear thinking on.  Considering that Rehnquist may not last much longer either, and there's no guarantee he'd be in a position to stay on until his replacement was confirmed...

      by BruceK on Fri Jul 01, 2005 at 08:34:37 PM PDT

      [ Parent ]

    •  Good point (none / 0)

      Wonderful technical elimination of the recess appointment possibility. Puts this particular boogieman theory to rest, thank God. And besides the fact that O'Connor won't resign until her replacement is confirmed (not appointed, as you note) there's no way Bush could afford to do such a thing politically right now.

      it fitfully blows, half conceals, half discloses | Buy M.I.A.'s Kala! (No, really. Please!)

      by Addison on Fri Jul 01, 2005 at 08:35:58 PM PDT

      [ Parent ]

      •  But wait (none / 0)

        It's back again!

        As the diarist says in a comment that if Rehnquist dies or heaven forbid Stevens, then he could conceivably recess appoint.

        "But your flag decal won't get you into heave anymore."--Prine
        Blue House Diaries

        by Cathy on Fri Jul 01, 2005 at 08:45:20 PM PDT

        [ Parent ]

        •  Yeah, but (none / 0)

          Yeah, the technical invalidation of that lefty horror story doesn't work for anyone but SDOC. However, I still say Bush doesn't have the public support necessary to do anything like that. And my knowledge of constitutional law is flimsy too, so it may not even be legal -- though I think it is.

          Americans would not like this, and at a time when Bush is increasingly vulnerable to indictments and public humiliations (DSM, Plamegate, Osama Bin Laden, Social Sec., etc.) I can't imagine he'd do it. It'd make him unpopular and GOP Congressmen would have to start playing against him in their home states in order to buoy their poll numbers ahead of 06.

          it fitfully blows, half conceals, half discloses | Buy M.I.A.'s Kala! (No, really. Please!)

          by Addison on Fri Jul 01, 2005 at 08:49:14 PM PDT

          [ Parent ]

          •  I agree (none / 0)

            Bush does not have the public's goodwill to the degree necessary to get away with it, anyway.  

            And Rehnquist would have to die this weekend, or retire just before the next upcoming recess for that horror to work.

             

            "But your flag decal won't get you into heave anymore."--Prine
            Blue House Diaries

            by Cathy on Fri Jul 01, 2005 at 08:53:14 PM PDT

            [ Parent ]

        •  How much worse (none / 0)

          could Rehnquist's replacement be?

          by KeithH on Fri Jul 01, 2005 at 09:07:56 PM PDT

          [ Parent ]

          •  one thing I've learned (none / 1)

            in the last few years...don't EVER assume things can't get worse when this administration has something to say about it.

            What's the difference between the Vietnam War and the Iraq War? George W. Bush had a plan to get out of the Vietnam War.

            by hazydan on Fri Jul 01, 2005 at 09:14:47 PM PDT

            [ Parent ]

          •  will be four decades younger (none / 0)

            Rehnquist's replacement may not change the ideological distribution of the court much, but it will change the age distribution. we'll be stuck with this person for decades, even if we win every presidential election from now on.

            My husband commented tonight that Stevens really should have retired during Clinton's second term to allow Clinton to change the age distribution in our favor. Yes, the atmosphere in the GOP-controlled Senate was poisonous, and yes, Stevens seems to be in decent health, but I am really worried about whether he can last another four years (couldn't retire until early 2009 at the earliest). Clinton could have gotten another Breyer-type person through.

            John McCain: 100 years in Iraq "would be fine with me."

            by desmoinesdem on Fri Jul 01, 2005 at 09:52:28 PM PDT

            [ Parent ]

        •  OH MY GOD! (none / 1)

          BUSH IS GOING TO KILL REHNQUIST!!!

          Tell me, what is it you plan to do with your one wild and precious life? - Mary Oliver, "The Summer Day"

          by Rico on Fri Jul 01, 2005 at 09:18:24 PM PDT

          [ Parent ]

        •  Bush does it (none / 0)

          And we own his ass. Bushco is ruthless, not stupid.

          I Am Hussein and So Can You

          by Goldfish on Fri Jul 01, 2005 at 10:49:58 PM PDT

          [ Parent ]

    •  So she was specifically denying Bush (none / 0)

      the ability to make a recess appointment?

      And she thought it important enough to spare additional time away from her dying husband in order to prevent him from making one?

      by Abou Ben Adhem on Fri Jul 01, 2005 at 08:36:06 PM PDT

      [ Parent ]

      •  No (none / 1)

        Resigning in this manner is traditional.

        by Steve M on Fri Jul 01, 2005 at 08:39:31 PM PDT

        [ Parent ]

      •  According... (4.00 / 2)

        to the fine folks at Goldstein & Howe (who know this stuff), it's commonplace in resignation letters for Justices to do this--it's not a veiled threat on a recess appointment (and they get into that more later in the blog, which I can already attest is going to be invaluable).

        by profmatt on Fri Jul 01, 2005 at 08:41:19 PM PDT

        [ Parent ]

        •  I'm skeptical (none / 0)

          I haven't done a lot of research, but this is what I've found so far:

          Justice WHITE announced his retirement on March 19, 1993, effective "at the time the Court next rises for its summer recess."  See 509 U.S. Reports at iv.

          Justice MARSHALL announced his retirement on June 27, 1991, effective October 1, 1991.  See 502 U.S. Reports at iv.

          Justice BLACKMAN announced his retirement April 6, 1994, effective August 3, 1994.  See 512 U.S. Reports at iv.

          Justice BRENNAN announced his immediate retirement on July 20, 1990.

          Justice POWELL did not write a letter.  C.J. REHNQUIST announced POWELL's retirement from the bench on June 26, 1987, followed by POWELL's press conference, and it was effective immediately.

          Justice STEWART gave a retirement letter to Reagan at a meeting on May 18, 1981; his retirement was effective on July 3, 1981.

          These are the last 6 retirements....and none among them contain the language that Justice O'CONNOR's does.

          The man who reads nothing at all is better educated than the man who reads nothing but newspapers. -Thomas Jefferson

          by PeteyP on Fri Jul 01, 2005 at 09:41:08 PM PDT

          [ Parent ]

  •  Can't happen (4.00 / 3)

    The first sentence of her resignation letter:

    This is to inform you of my decision to retire from my position as an associate justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.

    http://rawstory.com/news/2005/OConner_retirement_letter_to_Presi_0701.html

    There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy. -- Hamlet Act 1, Scene 5

    by LawStudent on Fri Jul 01, 2005 at 08:35:04 PM PDT

  •  Even though its in her letter of resignation...... (none / 0)

    I dont think he would anyway for the simple fact of how politically damaging that would be at a time like this. Not that I dont think he would just do whatever he wanted whenever he wanted consequences be damned....but GWB is in full suck up mode because although he claims to not care about the polls you know he knows what an ass everyone thinks he is. A move like that would only fire up the base and piss EVERYONE else off.

    "The pen devils set the stage for the war at home, locked without a wage....ya standing in the drop zone..."

    by Diggla on Fri Jul 01, 2005 at 08:58:58 PM PDT

  •  it doesn't work that way. (none / 1)

    he can push through recess appointments for lower courts, but not for the supreme court--the only court for which the constitution explicitly dictates appointment procedure:

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (US Const. Art. 2 § 2)

    for the animals | for the earth | for yourself :: go vegan

    by kennyt on Fri Jul 01, 2005 at 09:02:15 PM PDT

    •  wow, nevermind that. (none / 0)

      i forgot that the recess appointment power is in the constitution (the very next section). fuck me.

      for the animals | for the earth | for yourself :: go vegan

      by kennyt on Fri Jul 01, 2005 at 09:05:40 PM PDT

      [ Parent ]

    •  Yes, it does. (4.00 / 3)

      Earl Warren, for example, became Chief Justice via a recess appointment by President Eisenhower. The reason for the recess appointment was that Chief Justice Vinson  unexpectedly died on September 8th and Eisenhower reasonably wanted a new Chief Justice in place for the beginning of the new Term on the first Monday in October. Subsequently, Warren was confirmed by the Senate. Eisenhower also gave recess appointments to William Brennan and Potter Stewart, and both subsequently were confirmed by the Senate.

      The authority is given the President in Article III, 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.

      Heathlander and another American agree on I-P Peace Plan.

      by another American on Fri Jul 01, 2005 at 09:18:35 PM PDT

      [ Parent ]

    •  ummm Earl Warren (4.00 / 2)

      was appointed to the Court with a recess appointment, albeit with consultation with the Senate leadership, because Cheif Justice Fred Vinson had passed away.

      Eisenhower also appointed William Brennan as a recess appointment.

      Both of them were confirmed by the entire Senate.

      George Washington appointed John Rutledge as Chief Justice with a recess appointment, but he never became more than an acting Chief Justice because the Senate refused to confirm him, for among other reasons intermittent mental illness.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Fri Jul 01, 2005 at 09:19:42 PM PDT

      [ Parent ]

  •  I don't think he'd do it anyway... (none / 0)

    just because half of the game is trying to make the Democrats look obstructionist, anti-life, pro-judicial activism, pro-gay agenda, racist...have I left out anything.

    by jmax on Fri Jul 01, 2005 at 09:06:31 PM PDT

  •  <p>Fascinating Question</p> (none / 1)

    The Constitution grants to the president the power to make appointments for any "vacancies that may happen during the recess of the Senate...." (Which makes an appointmentfor a vacancy which happened much earlier questionable) Those appointments shall end at the end of their next session. A Supreme court judge shall serve during good behavior. Bites its tail, rather, doesn't it?

    If he did make an interim appointment, the Constitution both says that the 'commission' should expire soon and that it should last for life.

    "I'm not opposed to all wars; I'm opposed to dumb wars." -- Obama in 2002

    by Frank Palmer on Fri Jul 01, 2005 at 09:28:28 PM PDT

  •  Recess appointments (none / 0)

    Everyone has always ignored this, but the plain meaning of the constitution is that the president may make a recess appointment when the vacancy occurs while congress is in recess, not that the president, during a recess, can make an appointment that has been languishing for months.

    by Brian Boru on Fri Jul 01, 2005 at 09:33:55 PM PDT

  •  Won't happen (none / 0)

    Not with O'Connor (due to reasons already stated), and not if one of the other Justices dies.

    Recess appointments only serve until the end of a Congressional secession, at which time they must be confirmed as if they were new nominees.

    So really, it doesn't do anything for Bushco, but put of the fight for a later date, but it does piss a lot of people off, including Republicans in the Senate, and the public at large.

    Moreover, since the appointment would have to be confirmed by the new Congress, the Senate make up might not be as favorable for Republicans as it is today.

    This whole idea is nothing but a giant straw boogie man.

    I Am Hussein and So Can You

    by Goldfish on Fri Jul 01, 2005 at 10:56:18 PM PDT

  •  name this option (none / 0)

    Worrying about a recess appointment just doesn't do it for me.

    If they can jazz up ending filibusters on judicial nominees to be the nuclear option, we should create a buzzword or phrase for recess appointment. Any suggestions?

    Now I'm not one for torture, but this rendition is extraordinary.

    by kbse matt on Fri Jul 01, 2005 at 11:50:00 PM PDT

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