Don't Jeopardize the Work or the Integrity of the Supreme Court -- How a Recess Appointment Could Satisfy Both Sides

The American flag flies at half-staff in front of the U.S. Supreme Court building in Washington, D.C., U.S., on Tuesday, Feb.
The American flag flies at half-staff in front of the U.S. Supreme Court building in Washington, D.C., U.S., on Tuesday, Feb. 16, 2016 Justice Antonin Scalia's unexpected death, and Senate Republicans' refusal to confirm a successor while President Barack Obama is in office, threatens to ignite a year-long battle over the court's future. Photographer: Andrew Harrer/Bloomberg via Getty Images

The partisan bickering over when to fill the vacancy occasioned by the death of Justice Antonin Scalia must not be allowed to jeopardize the work of the Supreme Court. Those signing below are distinguished law professors, practitioners and even judges.

As with all Americans, we represent a broad range of political beliefs from progressive to conservative and every shade of point-of-view in-between. We understand the importance to both political parties of filling the vacancy with someone who will bring to the bench a favored perspective or interpretive approach. However, it is most important that we not allow today's hyper-partisanship to undermine the immediate need for a full bench. There is a way to accommodate the long-term appointment interests of both sides while ensuring that the Court is not short-handed for well over a year. What is the way?

A recess appointment

Ordinarily, the President must obtain "the advice and consent of the Senate" before appointing an officer of the United States, including a Supreme Court justice. But the recess appointments clause creates an exception and gives the President alone the 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 the next session." Article II, section 2 clause 3.

Quite recently, the Court examined three questions related to this power to make temporary appointment: the scope of the words "recess of the Senate" and specifically whether or not the phrase referred only to an inter-session recess, ( i.e. that between the two formal sessions of a two-year congressional term) or also included intra-session recesses, such as those associated with holidays and summer recess.

The Court determined that the authority of the president included both type of recesses, but also held that the recess had to be of sufficient length. Presumptively, the court held that a recess between three and 10 days was not enough, except in the very rare cases of emergency or necessity.

The emergency imagined by the Court was described as a "very unusual circumstance or national catastrophe." Friends of Justice Scalia, even ones like me who did not always concur with his view, likely see his death as tragic, but it will be the leaving of his vacancy unfilled that has the potential for being catastrophic by seriously jeopardizing the work of the Court.

There is no justification for such jeopardy. When the Court examined what the words "vacancies that may happen" means, the Justices determined that it refers to vacancies that both come into existence during a recess, but also those vacancies -- like that created by the death of Justice Scalia -- that arise prior to a recess, but continue to exist during it.

Senator McConnell and his Republican colleagues are of the view that the President should not nominate someone for the high court during his final year in office. President Obama reminds the Senator that the Constitution specifies presidential service as a four-year term. Mr. McConnell persists in seeing things differently and together with Senator Ted Cruz predicts that the President will be obstructed if he attempts to nominate someone for the high bench.

The Republicans argue that the President should wait so that the voice of the American people can be heard in the national election. What these Senators cannot fully answer is that President Obama by virtue of his victory in 2012 already possesses the right (and now has the duty) to represent the American people in keeping a co-equal branch in meaningful operation.

Recess appointments were intended to be the subsidiary route of appointment. Presidents are authorized to make them, and thousands have been made, including some notable appointments to the Supreme Court, such as that of Chief Justice Earl Warren's initial appointment to the Court.

At the same time, the Senate's advice and consent should not be easily circumvented for as the Federalist Papers note Senate approval provides "an excellent check upon a spirit of favoritism and would tend greatly to preventing the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity."

The sparring between Democratic and Republican presidential candidates that emerged in response to the sad news of Justice Scalia's passing set off a firestorm even before Justice Scalia could be given a proper burial. The President has a duty to nominate, and if the Senate wants to be true to the founders in honor of the late Justice, it will want to conscientiously fulfill what Alexander Hamilton saw as a corresponding duty to conduct hearings and to vote a nominee up or down. Unfortunately, we don't seem headed in this direction, but instead destined for Donald Trump's "delay, delay, delay."

Such delay, however, is harmful to the work of the Court and devastating to the litigants who have matters presently seeking resolution by the justices in the present term. Indeed, it's not only the cases that are presently pending, but if the appointment is to be pushed back until after the next president is inaugurated on January 20, 2017, it is likely that the Court would not have a full complement of nine justices until the spring 2017.

A delay of that magnitude disregards the lives and liberties that will be adversely affected by such delay and sadly illustrate the axiom that justice delayed is justice denied. This is tragic, at any time, but it is especially exigent, when one contemplates that matters of race and gender discrimination, voting rights, reproductive liberty, and the executive administration of immigration laws, and much more, are all on the Court's docket, requiring determination and opinion.

Thus far this term only 14 of 81 merits cases have been decided. A ninth justice is needed for definitive resolution and if someone could be appointed within the next available recess by the President all of those cases -- even those for which oral argument has already been completed (some 39 cases) -- could be resolved, with a judgment other than a tie which will result in lower court outcomes creating inequalities in how federal law is enforced across the country.

Because many oral arguments remain and oral arguments already made are available in transcript and audio form, and all the briefing is of course reviewable, there is little reason why the Court as an institution should be forced to issue a series of four to four opinions, with no precedential value.

A recess appointment also gives respect to Sen. McConnell's argument that the next president has the opportunity to appoint someone to the bench. With a temporary, recess appointment, constitutionally prescribed to run only to the conclusion of the first session of Congress elected in November 2016, whoever that new president is -- Democrat or Republican -- will have the ability to fill the vacancy permanently.

Who might the president appoint for such a temporary assignment ?

Arguably, the most important criterion should be someone who has publicly served in high office during both Democratic and Republican administrations. Because the incomplete work of Justice Scalia must be attended to immediately, this bipartisan public servant should also be fully conversant with constitutional jurisprudence, and come from a legal career that has required careful writing and analysis.

In all likelihood, the president should avoid those who he would contemplate for the permanent appointment. What is important is the sound completion of the work of the Court, and since a recess appointment does not allow the Senate the partisan examination of that appointee, the President too should set aside as much as possible the usual partisan inquiries of a completely compatible judicial philosophy or whether the candidate is of a sufficiently youthful age to serve for an indefinite time into the future. In this way, by making a bipartisan appointment that avoids favoritism and other strategic considerations that go into the typical long-term appointment, the president will be showing comity to the Senate, as well as ensuring the institutional needs of the judiciary.

A salutary byproduct of this temporary appointment might also bring to the Court someone with a slightly more varied background than its present membership, which is overwhelmingly made up of former Court of Appeals judges. At various times, the Supreme Court has benefited from a wider harvest of talent, including distinguished law professors, practitioners ,and in particular, those who have headed governmental offices known for objectivity and independence of mind, such as the office of legal counsel and the solicitor general. True, the President is deprived of making a wholly partisan appointment, but that sacrifice or cost is outweighed by the benefits of avoiding a disruption of judicial work. Filling the Supreme Court vacancy also enhances the prospect of keeping the presidential campaign focused on a full range of topics from terrorism to unemployment to health care and income inequality among many other pressing policy matters.

Would Justice Scalia agree?

As a matter of original understanding, Justice Scalia favored a narrower conception of recess appointments. That said, even Justice Scalia acknowledged the historical accuracy of the Court's relatively recent finding that: "The President has consistently and frequently interpreted the Recess Appointments Clause to be applied to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer." No one can truly replace Justice Scalia, but as someone who prided himself on the excellence of his own work, Justice Scalia would likely understand why the person who follows him will need to get down to business - sooner rather than later.

The business of the United States Supreme Court is now, not a year or more from now. If the President demonstrates his own personal commitment to common ground by selecting a person of bipartisan service and capability, the U.S. Senate should respond in reciprocity by not using any pro forma artifice to delay having a recess appointee get down to work, no later than the next anticipated 10 day recess in mid-March.