This Supreme Court decision could thwart Obama's attempt to pick the next justice

Now that Senate Republicans have vowed not to hold a hearing on any Supreme Court nominee, it’s looking less likely that President Barack Obama will be able to pick the court’s next justice.

Obama may consider, in the face of such fierce opposition, unilaterally appointing a successor to the late Antonin Scalia during a Senate recess.

Recess appointments allow the president to appoint senior US officials while the Senate is on a break. Officials appointed during recesses have to be confirmed by the Senate before the end of its next session.

However, SCOTUSBlog founder and appellate lawyer Tom Goldstein told Business Insider in an email, “A recess appointment seems to be off the table because the Republicans won’t allow the Senate to go into a long-enough recess.”

To be sure, one of the court’s most famous justices, William Brennan, was put on the bench through a recess appointment right before an election, as SCOTUSBlog’s Lyle Denniston has noted.

But Obama will likely have a harder time making a recess appointment than President Dwight Eisenhower did when he tapped Brennan in 1956.

That’s because the Supreme Court curbed the ability of the president to make recess appointments, in a 2014 case called National Labour Relations Board (NLRB) v. Noel Canning.

In that case, the Supreme Court unanimously held that Obama couldn’t make appointments to the NLRB when the Senate was on break but conducting short sessions every three days. That decision found the Senate “is in session when it says it is,” essentially giving it broad power to define an official recess that would trigger the president’s ability to make a recess appointment.

Another appellate lawyer, who requested anonymity to speak freely, seemed highly sceptical that Republicans — who control the Senate — would ever go into recess during this critical time.

“I think the Court’s decision in Noel Canning makes clear that ‘the Senate is in session when it says it is’ and thus the Republican majority has complete control over whether that body is ever in recess,” that lawyer told Business Insider in an email. “I don’t think the Senate will be in recess between now and the end of President Obama’s term and so he won’t have an opportunity to make a recess appointment.”

In the absence of the ability to make a recess appointment, the president might end up resorting to unorthodox tactics to get his nominee through — including appointing a Republican, like Nevada Gov. Brian Sandoval.

However, even a moderate Republican nominee like Sandoval could be risky, The Washington Post reported, noting that he’s not considered friendly toward labour. If Bernie Sanders or Hillary Clinton, the two Democratic presidential candidates, were elected, he or she could in theory appoint a justice with across-the-board liberal credentials — provided the Senate doesn’t block their confirmation.

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