Obama Could Use Power to Rig Supreme Court
President Barack Obama may not have been able to get Merrick Garland on the Supreme Court through the normal process of Senate approval, but new reports say that a long-shot process could put Garland on the court for at least a few weeks.
According to The Washington Times, there will be a five-minute window on Tuesday afternoon between when the 114th Congress is gaveled out of session and the men and women of the 115th Congress take their oaths of office. That creates an “intersession recess” in which the president could appoint Garland for a year or until the Senate replaces him by confirming an appointee of President-elect Donald Trump.
Another theory, much more difficult to pull off but much more damaging, could put Garland on the court for life as a replacement for Antonin Scalia, with President-elect Donald Trump never being able to nominate his replacement.
Now, it’s worth pointing out that the gamble is a long-shot, even if some liberal activist groups are practically begging the president to do it. A 9-0 Supreme Court ruling in 2014 invalidated 2012 recess appointments made by the president while Congress was on break. However, that ruling acknowledged the difference between “intrasession” appointments, like the ones Obama made while Congress was still in session but on recess, and “intersession” appointments, made while Congress had officially been gaveled out of session.
There’s also the fact that, as law professor William G. Ross of Samford University points out, such an appointment would be “politically unwise and damaging to the prestige of the court.”
“It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Ross said.