On the President’s options for replacing Ruth Bader Ginsburg.
Justice Ruth Bader Ginsburg has died in the midst of a presidential election campaign in which the Supreme Court was already a major issue. The death of a liberal stalwart on the Court, along with the vacancy it creates, is bound to overwhelm for a time other campaign issues, such as the coronavirus, the economy, and disorder and mayhem on the streets of America’s cities.
Many have said that President Trump cannot appoint a successor to Justice Ginsburg during an election campaign, and that any such appointment must be put on hold until the next President is inaugurated in January. Democrats, for understandable reasons, want to keep the seat open until after the election when they hope a newly minted President Biden can fill the vacancy. They cite as precedent Senator McConnell’s decision in 2016 to reject consideration of President Obama’s appointment to fill the seat created by the death of Justice Scalia. At that time, he said that it would be improper for a lame duck president to fill a vacancy on the Court during an election year, a view that Democrats rejected.
Senator McConnell has now said that he will bring any appointment made by President Trump to fill the Ginsburg seat to a vote in the Senate before the end of the year. That may prove to be difficult since several Republicans in the chamber have said that they will not vote on any appointment until January. In addition, any such vote may jeopardize the seats of several Republican incumbents up for re-election this year—including Senators Collins (Maine), McSally (Arizona), and Gardner (Colorado). Those senators, and perhaps others, may prefer to avoid that vote until after the campaign is over.
It is thus an intricate question as to how the different sides should play the vacancy on the Court. President Trump, always the gambler, could proceed to send an appointment to the Senate in order to use it as a campaign issue. But that move will roil the Senate and split Republicans in the body, thereby harming his re-election campaign, with little hope for a positive vote in any case. The media will have a field day with any such appointment, using it as a means of attacking the President while scouring the record of the appointee in hopes of finding some malefaction committed during his or her high school or college days. Democrats, while attacking such a move, might actually benefit from it.
There is a solution to the impasse in the form of a recess appointment to the Supreme Court that would remain in place until the beginning of the next session of the Senate in January. This is authorized by Article II, Section 2, Clause 3 of the Constitution, which reads: “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.”
The purpose of the Recess Appointment Clause is in part to allow the executive branch to function during the recess of the Senate or to fill vacancies that the Senate refuses to consider. The recess appointment is meant to last until the end of the current session of the Senate—in this case, until the end of the calendar year. The Supreme Court ruled in 2014 (National Labor Relations Board v. Noel Canning)that the president can fill a vacancy during a recess even though the opening occurred before the recess began.
There is abundant precedent for such a presidential move. In 1953, President Eisenhower appointed Earl Warren as Chief Justice of the Supreme Court in a recess appointment in October of that year following the death of Chief Justice Fred Vinson in September. He waited until the new year to submit that appointment to the Senate, leading to Warren’s confirmation in March of 1954. A clearer precedent occurred in 1956 when Justice Sherman Minton resigned in October, in the midst of Eisenhower’s re-election campaign. He chose to elevate William Brennan to the Court in a recess appointment that took effect on October 15 of that year. Eisenhower wrongly believed that Brennan was something of a conservative and that the appointment of a Catholic to the bench would help him in his re-election campaign. Brennan was formally nominated to the Court in 1957 and won confirmation in the Senate by acclamation.
President Obama might have given Merrick Garland a recess appointment to the Court following Justice Scalia’s death in 2016 but did not do so because he thought that such a move might harm H. R. Clinton’s presidential campaign—and he (like others) assumed at that time that she would win election in the fall. In addition, Sen. McConnell controlled the Senate calendar, and was thus in a position to keep the chamber in session in order to prevent just such an appointment. The appointment of Judge Garland might have been an influential step because it would have given the liberal bloc a temporary majority on the Court.
In the current case, President Trump could break the impasse over the Court by appointing Federal Circuit Court Judge Amy Coney Barrett (or some other qualified person) to the Court via a recess appointment to last until January of next year. He could say, in taking such a step, that his intention will be to make that appointment permanent in 2021 should he win re-election in November. That would turn the appointment into an issue that might work to his advantage in the campaign, while avoiding a nomination that would divide the Senate and his party. The recess appointment would be temporary, lasting just a few months, and would still allow the next president to fill the vacancy on a permanent basis in January. It would also fill a vacancy on the Court, giving it a full complement of nine members when it starts its next session in a few weeks.
Senator McConnell could assist in such a step by declaring the Senate to be in recess for a period in September or October, thus allowing the President an opening for a recess appointment. That would not be difficult to do, since the Senate is likely to be in recess anyway in October to permit members to campaign for re-election.
There are risks to such a move, but there are risks both in trying to fill the vacancy or in leaving it open for the time being. It would provide an opening for new attacks on President Trump, but those attacks might drive other issues off the national agenda for a time while permitting the President to maneuver the issue in his favor. Assessing the risks, a recess appointment looks to be a reasonable way for the President to fill the vacancy in the immediate term while still allowing the next president to fill it on a permanent basis.
This piece originally appeared at The New Criterion
James Piereson is a senior fellow at the Manhattan Institute.
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