Can President Obama appoint Merrick Garland to the Supreme Court now that the Senate’s term is ending? Should he?
The answer to the first question is yes: The constitution gives him that power. The answer to the second one is probably no, since doing so would accomplish very little.
But the question we should be asking is something else: whether the president should appoint the 59 candidates for federal judgeships whose nominations, like Garland’s, have been left to languish. And to that question, I answer: absolutely.
Recess appointments are governed by Article II, Section 2 of the Constitution, which states, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Such appointments are temporary; unless ratified by the Senate, they only last through the end of the next term. Back when the Senate would only meet for a few months during the year, the purpose of the clause was to allow presidents to temporarily fill vacancies without having to wait months for congressional approval.
Over the subsequent 200 years, however, presidents have exercised the clause thousands of times (PDF), even when recesses were relatively short, in part to circumvent the kind of stonewalling we saw during the Obama presidency: 103 federal judicial vacancies and hundreds of administrative vacancies are, as yet, unfilled. (Of the 103 judgeships, Obama has nominated 59 candidates; the remaining 44 do not have nominations pending.)
But then came the workaround: Senators began holding “pro forma sessions”—basically, gavel-in, gavel-out, do nothing in between—to avoid being formally in recess. In the 2014 case of NLRB v. Canning (PDF), the Supreme Court ruled 9-0 that the practice was constitutional, and that pro forma sessions did, in fact, prevent President Obama from making recess appointments. Since then, the Senate has done exactly that, keeping itself in bogus sessions in order to avoid a formal recess.
At the same time, NLRB v. Canning also affirmed the longstanding practice that, when a recess does occur, presidents may fill vacancies no matter when they arose. (The four conservative justices, in dissent, argued that the recess clause should be read as narrowly as possible, and only permitting the president to fill vacancies that arose during a recess. But if that question were debated today, it would be decided 5-3 against that view, which goes against 200 years of accepted practice.)
In other words, if a recess does take place, President Obama has the power to make recess appointments that last for one year. And by definition, a recess must take place on Jan. 3, between the end of the 114th Congress and the beginning of the 115th. (It is undetermined whether an inter-session recess must be of a certain length or not, since the NLRB case had to do with recesses during sessions.)
So he can do it, but should he?
No. Unfortunately, appointing Judge Garland to the Supreme Court for one year would do more harm than good. Obviously, the American system of government will be under tremendous strain in the coming four years. The president-elect has already flouted conflict of interest rules, national security protocols, normal relations with the press, and even the White House itself, as he intends to work part time from home. And that’s just in the last two weeks.
Yet appointing a Justice Garland would cause mainstream conservatives to delegitimize the Court precisely when it is most needed to defend civil liberties and the rule of law under President Trump. Though the inevitable legal challenge to a Garland appointment would most likely be rejected, it would still be filed and litigated—a distraction at least, a constitutional crisis at most.
And for what? Over the short term, the ideological balance of the Court will barely shift, and because the Court expected itself to be shorthanded, it has thus far taken very few politically controversial cases this term. That will surely continue during Garland’s tenure, as the Court will justifiably worry about the legitimacy of any decisions it makes.
Obviously, the Republican-led Senate would not ratify Garland’s appointment, so he will serve for nine months, matter very little, and further strain our already stretched civic institutions. It’s just not worth it.
When you consider those 59 judges, however, the calculus looks very different.
First, Obama’s case for recess appointments is even stronger for district and appellate judges than with Garland. Independent observers have declared a “judicial emergency,” a precisely defined term indicating serious problems with the operation of the federal judiciary. While the Supreme Court has also been crippled by the Republicans’ inaction, the situation is even worse elsewhere. Dockets are overflowing, cases are backlogged, and the judiciary is unable to do its job because the Senate is playing politics.
Indeed, in the 114th Congress, the Senate has confirmed only 25 percent of judicial nominees; when Democrats controlled the Senate under President George W. Bush, the rate was 58 percent. In most cases, the nominees have not even been given hearings, let alone up-or-down votes. That is a compelling justification for recess appointments of these judges.
Second, the effect of these lower court appointments will be much greater than a single Supreme Court justice. Even if all of those judges are ultimately recalled, they will hear and decide hundreds, perhaps thousands, of federal cases in the meantime. Irrespective of partisan concerns, this will go a long way toward alleviating the backlog and enabling the federal judiciary to do its collective job.
Third, that job is about to get a lot harder. Expect tens of thousands of challenges to deportation orders, for a start, most of which will be low-profile, grinding cases that will heavily strain the justice system. Then there will be the high-profile challenges to the (hypothetical) Sessions-led Justice Department, the Kobach-led Homeland Security Department, and the Ebell-led Environmental Protection Agency. The courts, together with Senate Democrats, will be the last barrier between the Trump administration and millions of vulnerable people. And they will strain under the burden placed upon them.
Fourth, consider the optics. The Garland stonewall was an unprecedented travesty and violation of the Senators’ constitutional oaths. But let’s face it—Democrats are now going to do the same thing: They will filibuster any ultra-conservative whom Trump nominates and try to force a compromise candidate. So far, none of Trump’s funhouse of judicial radicals fits that bill. It would look more than a little hypocritical for President Obama to recess-appoint Garland and then have Senate Democrats filibuster the person Trump nominates replace him.
Fifth, to the extent this matters, filling these judicial vacancies can call some attention to the magnitude of the crisis, and will force Senate Republicans to effectively un-appoint 59 qualified judges in a time of judicial emergency. Of course, this will be just one more outrage to throw onto an overwhelming pile of them. But if the Trump administration does indeed cause a nationwide crisis in the area of civil liberties, this will force Senate Republicans to officially be part of the problem.
Finally, this doesn’t have to be about politics. The Garland nomination is a political litmus test; recess-appointing him would be a kind of nuclear option. But these vacancies don’t have that political toxicity to them. God help us, there might even be some consensus here: It’s quite possible that some moderate Republicans will peel off, affirming some of Obama’s more moderate picks in order to stanch the bleeding. This won’t be much of a political victory for Democrats, and that’s the point. If even a handful of recess-appointed judges survive 2017, that will be good news for the justice system, and for folks of all ideological persuasions.
Save our justice system, President Obama. It will be needed next year more than ever before. We need those 59 judges.