How Obama Can Get a SCOTUS Nominee Confirmed

Here’s the optimal strategy if the President’s goal is to get a nominee past an obstructionist Republican Senate: appoint a flaming liberal as a recess appointment Justice, and couple that with the nomination of a middle-of-the road Supreme Court nomination for the permanent seat on the Court.

For the next few days — and only for the next few days — President Obama (arguably) has the right to make a recess appointment to the Supreme Court. To the limited extent there is a tradition (the appointment of Justice Brandeis), the tradition is that if a recess appointment is made the President then nominates the same person for a lifetime appointment.

But that tradition has quite a lot working against it. For starters, it means at least temporarily one Justice not only lacks lifetime tenure, but has to make decisions either with an eye towards confirmation, or in the teeth of the cost to possible confirmation. In these polarized times, that is asking a lot. Plus there is a real danger that the Justice is not confirmed in the end.

Why not instead appoint a temporary Justice, someone old enough for it to be the capstone to a distinguished career, and then a different, younger, person for the permanent position. Make the temporary appointment someone very very liberal (Patrica Wald? Stephen Reinhardt?); make the permanent appointment someone more moderate. Since the confirmation of the permanent Justice immediately removes the recess appointment Justice from office, the sooner he or she is confirmed, the fewer decisions the more liberal appointee gets to vote on. Thus, a vote against the permanent appointment becomes a vote for keeping the more liberal Justice in office. Not only does it put the GOP in a bind, but it creates cover for voting for the Democratic nominee.

On balance, I’m not sure I like this strategy as it ends up with a middle-of-the-road Justice, but unlike most other things I can think of, it does have some chance of working. You heard it here first.

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11 Responses to How Obama Can Get a SCOTUS Nominee Confirmed

  1. I tweeted a similar strategy but I added the threat that if the moderate nominee is rejected, 41 Dems can prevent the temporary liberal from ever being replaced in future sessions.

    • Except that this is an empty threat since the term of a recess appointment is limited by the constitution:

      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.

      Art. II, sec 2, para 3

  2. Mark Sumimoto says:

    I thought of this strategy (independently) this morning, but I figured the best temporary appointee is David Souter. He retired by choice, not health or other reason, and continues to serve on lower courts. He is obviously qualified, and hardline Republicans hate him.

    • But do they hate him enough? Compared to Larry Tribe? Or — and this might be my top choice for the hardball strategy — Bill Eskridge? Bill is a two-fer being both a leading proponent of dynamic interpretation, and a long-time gay marriage activist.

      • Mark Sumimoto says:

        Some do, but I think other factors should be weighed. Souter cannot be deemed unqualified and will lessen (but still not eliminate) those types of objections. More importantly, asking a judge to serve on the Supreme Court only to give up that seat on demand is a terrible imposition. Even as a career capstone, asking a judge to make this personal decision would be heart rending, unless that someone doesn’t want the seat. Maybe Tribe or Eskridge would do it, but looking from the outside, I would ask Souter before imposing this choice on anyone else. Ultimately, it comes down to who says yes.

        • I can see why one wouldn’t ask a sitting full-time judge to give up a life tenured appointment for a temporary one.

          But I don’t see the problem with asking the person who has the temporary seat to give it up since by constitutional command the recess appointment lapses at the end of the next session of the Senate anyway.

          • Mark Sumimoto says:

            Yes, the appointee would go into it knowing it is temporary, but they would also know the goal is to shorten the term even further. The appointee is chosen because Republicans will want anyone else, and the President will fight to make that happen as soon as possible. It’s a tough ask. A non-judge, someone who hasn’t worked toward the Supreme Court their entire career, would be easy to ask, but not otherwise.

  3. Dan Margo says:


    I believe this strategy, if it works at all, would work for longer than the “next few days.” If the Senate is truly now in “recess,” then the vacancy “initially occur[red] during a recess,” and that means a recess appointment can be made, I believe, until the vacancy is filled (even if the Senate returns to session). See NLRB v. Noel-Canning, slip op. at 21-22.

    Some more detail:

    NLRB v. Noel-Canning holds that, when a vacancy arises BEFORE the Senate recess begins, then a president may make a recess appointment during a subsequent recess of ten or more days. Importantly, however, if the vacancy arises DURING the recess (as arguably occurred here), then the recess appointment power is triggered–and there appears to be no deadline on when the president may make such an appointment. As the Court wrote (slip op. pp. 21-22):

    “The second question concerns the scope of the phrase ‘vacancies that may happen during the recess of the Senate.’ Art. II, §2, cl. 3 (emphasis added). All agree that the phrase applies to vacancies that initially occur during a recess. But does it also apply to vacancies that initially occur before a recess and continue to exist during the recess? In our view the phrase applies to both kinds of vacancy.”


  4. Rockwell says:

    A recess appointment is not necessarily just a temporary appointment. It is THE appointment, at least until the Senate term expires.

    For this reason he can’t make two appointments at the same time. So it’s an interesting idea, but faulty legal logic. He’s got one shot only.

    The better idea is for Obama to just make a recess appt. on Friday, with the rationale being that the GOP has already said they were going to refuse to consider anything made during the normal process, and thus his hands are tied. The job’s gotta be filled.

    PR wise this could work. The Court could agree too– after all, it’s for them. If not, what then would constitute a valid “recess”?

    People think that an extended battle will help the Dems, but quite the opposite. By this summer both the GOP and mainstream media will be accusing him of court packing. Give it up, let the people decide, that kind of thing. Just watch.

    By an odd set of circumstances, the GOP screwed up last Friday by not setting pro forma meetings this week. This means that he could make a recess appt. and get away with it. He should take advantage of this once in a lifetime opportunity, because it will NEVER happen again.

  5. eric says:

    If I was advising the Pres., I would advise him to nominate Cruz, because I think that a Trump/Rubio vs. Hillary is a contest the Democrats can win (not that Cruz is such scary opponent, it’s just that this way the GOP is locked into nominating Trump.) By taking Cruz out of the running, I would sacrifice one Supreme Court seat but I would gain another four (maybe 8 years) in the Oval Office, which will mean appointing more Supreme Court Justices.

    This I guarantee, you heard here first…

  6. A great, wonderfully strategic idea for replacing Scalia (RIP). Best that I have read thus far.

    I have argued for Obama to make a recess appointment via the Potter Steward/Bill Brennan/Ear Warren example (the recess appointee serves on the Supreme Court while awaiting Senate confirmation for tenure). I did so recently at ACSblog and repeated on Huff Po. But Prof. Froomkin’s strategic plan is far superior.

    I am now in fundamental disagreement with Obama on too many foreign and domestic policy issues to list. But still I must support his appointment discretion. I was the only law prof in the nation to file an amicus brief at the Supreme Court to support his NLRB recess appointments in Noel Canning. I did so also in support of all future presidents’ appointment authority.

    Actually, I have supported the recess appointment authority of the past four presidents (with out regard to their partisan affiliation or mine at the time).

    And I have been harshly critical of Breyer’s made-up “presumptive 10-day” recess rule limitation on that authority — particularly as to its unacknowledged effect of de-benching three LBJ judicial appointments made in a 1964 8-day recess. (Leon Higginbotham, Spottswood Robinson, and David Rabinoviz). But Noel Canning set the 10-day rule.

    So yes, on this day of Scalia’s funeral liturgy (being held here on my own Catholic University of America campus), the Obama Administration should be preparing to announce a Supreme Court recess appointment. Late Sunday night, Obama should sign the recess commission in the Roosevelt Room of the White House during in a short televised address to the nation. He should sign many additional commissions to fully staff his government for the remainder of his presidency.

    Unfortunately, from 2008, Obama has sought to “move beyond” confirmation fights; painting targets on the backs of many of his nominees. (Obama’s fumbling foreign policy failures in placating Iran while attempting to ignore ISIS have been analogous.)

    Prof. Froomkin’s excellent idea for a genuinely “optimal” use of the recess appointment power is exactly the type of strategic plan that the Obama White House has failed to implement for seven years.

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