Recess Appoint a Supreme Court Justice: Obama Needs to Find His Inner-Trump to Replace Scalia on SCOTUS

A hallway outside the Senate chamber is empty during the tenth hour of a floor speech by Sen. Ted Cruz, R-Texas, on Wednesday
A hallway outside the Senate chamber is empty during the tenth hour of a floor speech by Sen. Ted Cruz, R-Texas, on Wednesday, Sept. 25, 2013 in Washington. Cruz began a lengthy speech urging his colleagues to oppose moving ahead on a bill he supports. The measure would prevent a government shutdown and defund Obamacare. (AP Photo/ Evan Vucci)

Our 100 U.S. Senators are now on a full, 10-day paid vacation. Such upper chamber indolence is no longer surprising to the American people. Little wonder that our Congress regularly earns public approval ratings in the single-digits.

But here is the shocker. The 10-day Senate recess will not be broken up by pro forma sessions used in years past to prevent President Obama from exercising his constitutional recess appointment authority. When the GOP-controlled Senate went on vacation, they were careless and left a recess-appointment window wide-open. And it can not be closed until Monday afternoon, February 22, 2016.

Ten days is exactly the minimum recess duration needed to trigger the president's recess appointment authority. Republicans acknowledge that Obama now has this alternative appointment power.

Meanwhile, just two days into the 10-day Senate recess, Justice Antonin Scalia passed from this suffering temporal plane leaving his SCOTUS seat vacant.

In a guest commentary just posted by the American Constitution Society, I argue that President Obama should immediately recess appoint a temporary replacement for Justice Scalia. The appointment would last until late 2017. I also suggest that Obama should use this opportunity to fill many of the other executive, regulatory, and judicial offices remaining empty due to partisan obstruction and normal Senate indolence.

President Obama must act now. I argue that Obama should get in touch with his "inner-Trump" to act immediately and boldly. Does anyone think that President Donald John Trump would hesitate to staff his government? Would Trump hesitate to fill the Supreme Court vacancy? Just sign the commissions and tweet the announcements. Just get the job done.

As I argue in the ACSblog commentary, Americans want a government that works as hard and as well as they do. And they want a president strong enough to ensure that it does so.

At noon last Friday, the Senate began a 10-day recess without any of the usual pro-forma sessions scheduled. No Senators were left home alone to gavel the Senate open and closed in sham sessions during the 10-day vacation. According to the formal House-Senate joint adjournment resolution, the Senate will not return until 3:00 p.m. on Monday, February 22. An uninterrupted 10-day break is exactly the minimum recess period established by the Supreme Court's NLRB v. Noel Canning ruling during which the president may exercise his recess appointment power. Whether intended or not, the GOP-controlled Senate has left Barack Obama a wide open appointment window. But it will be shut on Monday afternoon.

Will President Obama immediately fill the vacant seat on the nation's highest judicial bench? If so, he would retain authority and obligation to also nominate someone (the recess appointee or another person) for a life-tenured appointment. Earl Warren, William Brennan and Potter Stewart each served as recess appointees on the Supreme Court while they waited for Senate confirmation to tenured positions. And will Obama use the 10-day recess to fill the many other empty executive, regulatory and judicial positions? He has a unique opportunity to ensure a fully staffed government for his final year in office.


Over 300 federal judges, including 12 Supreme Court justices, have been recess commissioned in our republic's history. I have supported the recess appointment authority of the past four presidents regardless of partisan affiliation and regardless of my own changing partisan allegiance over the years. (As I remain a dedicated, common-sense constitutionalist, I find that the major parties keep leaving me.) Indeed, I was the only law professor in the nation to support President Obama's NLRB recess appointments with a Supreme Court amicus brief in the Noel Canning adjudication. I did so in support of the appointment authority of all future presidents.


It is now time for Obama to act to protect the functioning of the Supreme Court and to support the appointment discretion of future presidents. With the stroke of a pen on a recess commission, Obama should fill the Antonin Scalia vacancy "until the End of the Senate's next session." If Senate custom holds, the appointment would last until December 2017. Obama should also fully staff his administration for the remainder of his term with other executive and regulatory recess appointments.

Read the full ACSblog commentary here and read two of my related Noel Canning academic essays here and here.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Victor Williams founded the American Institute for Disruptive Innovation in Law and Politics --