Could Obama make a recess appointment to the Supreme Court?
President Barack Obama. Frederic Legrand - COMEO / Shutterstock.com
Republican calls to defer action on a U.S. Supreme Court nomination could have President Obama considering a recess appointment.
But the chances of a recess appointment are low as a result of a U.S. Supreme Court decision in June 2014, SCOTUSblog reports. The decision gave the Senate more control over when it recesses and how long the recesses last.
President Dwight D. Eisenhower made three recess appointments to the U.S. Supreme Court, according to the National Law Journal (sub. req.). They were Earl Warren, William Brennan Jr. and Potter Stewart. Such an appointment would last until the end of the next legislative session.
But the chances of a recess appointment today “seem to have diminished markedly,” SCOTUSblog says.
The 2014 Supreme Court decision, National Relations Board v. Canning, struck down three of Obama’s appointments to the NLRB that were made during a three-day break between pro forma sessions of the Senate.
As a result of the decision, SCOTUSblog says, Obama could nominate during a recess if these conditions are met: The recess lasts longer than three days, and the Senate does not meet from time to time during that recess to take some minimal legislative action. “Both of those circumstances would be entirely within the Senate’s authority,” SCOTUSblog says.
The NLJ, however, says the recess would have to be 10 or more days in length. That is likely a reference to a passage in the NLRB decision that said a recess of more than three days but less than 10 days is “presumptively too short” for a recess appointment.
In any event, President Obama won’t be making a recess appointment while the Senate is in recess this week, White House Principal Deputy Press Secretary Eric Schultz told ABC News.
“Given that the Senate is currently in recess, we don’t expect the president to rush this through this week, but instead will do so in due time once the Senate returns from their recess,” Schultz said.
