Obama can bypass Senate inaction by recess appointment to Supreme Court

If Barack Obama works fast, he can bypass Mitch McConnell’s do-nothing threat and use a recess appointment to fill Antonin Scalia’s empty seat on the US Supreme Court. The Senate is in recess until February 22, which gives the President nine days to move.

A recess appointment to the Supreme Court is unusual, but not at all unprecedented: 12 justices have been appointed by recess appointment, out of 112 persons to sit on the court. The last time a recess appointment was used was by President Eisenhower in 1956, to fill a vacancy that came up just before the 1956 election. At that time, Eisenhower (a Republican) appointed William Brennan to the court, who was a Democrat.

This would certainly take the wind out of McConnell’s sails, and although the Senate could, theoretically, disconfirm a nominee, that would be unprecedented — and it’s possible that such a move might be able to be blocked by the minority Democrats in the Senate.

Move fast, Mr. President.