Congress is now in recess until February 22

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If President Obama wants to bypass the Senate approval process for getting a new Supreme Court judge approved, at least for the rest of his term, he has the opportunity right now.

Both bodies of have adjourned until later this month for the President’s Day recess. The Senate last met on Thursday. When doing so, it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23.

So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn. This is a true recess and an opportunity for the president should he elect to take it — considering the political realities of the Senate and the position of its majority leader to potentially make a recess appointment.

In other words, unless the Senate, led by Mitch McConnell (R-Kentucky) decides to end its recess early, Obama has until February 22 to make an appointment to the Supreme Court that will be in effect through the end of his term.

The article assumes that once this recess ends in February, the Senate will not give Obama another chance. Based on Mitch McConnell’s past history however, I would not be so confident.


  • Cotour

    Than we should all expect a presidential appointment by the end of next week? He has everything to gain and nothing to loose. Unless he can deal for something even better, although I can not imagine what that might be.

    Might there have been a strategic general policy to remain in session? Given 1. The nature of this particular presidency, 2. The general average age of the Supreme court and 3. The general state of the world. Too cynical?

  • mpthompson

    It doesn’t bother me so much that Obama likely will quickly appoint a new judge, but the fact that if the tables were reversed, the GOP would roll over and cower against accusations of breaching protocol and fair play. Strange how the Dems never seem to have that problem. Anything they can get away with is fair game.

  • Steve Earle

    If Obama does do this then that will be a final confirmation that McConnell is truly a liar or an idiot.

    There is no way in hell the Senate should hand him this opportunity at this moment in time.

    Are we missing something? Do the Senators know something we don’t?

  • Garry

    They went into recess on Thursday, before there was any indication that Justice Scalia would pass away. We can’t pin the blame on McConnell; it’s just bad luck.

    Although there are important rulings coming up this year, a recess appointment that only lasts until Obama leaves office might be better than a permanent appointment that McConnell caves in on.

    Of course, I’d prefer that McConnell doesn’t cave, but I don’t have much faith that he’d hold.

  • Wayne

    For Cotour
    The Senate & House (are supposed to..) determine when & if they are in-session or in-recess. (See the whole NLRB recess appointment fiasco.)
    Mitch can call the Senate to order at anytime for any reason. He has however, worked hand-in-glove to pass practically all of Obama’s agenda & continues to allow votes on whacky Federal Judges. SCOTUS is very important but so are all the other judicial appointment’s.

    Gary– good comment. I fear McConnell will cave as well.

    Mr. Zimmerman– I heard something today about radio-astronomers detecting 800+ previously unknown Galaxies. Hoping that warrants a post if it’s actually a new discovery.

  • The galaxy discovery was merely the detection of data for galaxies directly behind the Milky Way that up until now have been hidden from view. There is a great deal of uncertainty about the discovery, which is why I don’t get that excited about it and haven’t posted a link. Here’s one.

  • Frank

    Reuters reports that BO will wait for the Senate to reconvene and follow the normal nomination/hearing process.

  • DubyaJD

    How would Antonin Scalia rule on the issue of his own succession if the issue had come before the Supreme Court and he had the opportunity to cast a vote . . . .well Scalia was know for interpreting the Constitution in a strict manner. .Article Two of the Constitution says the President has the power to nominate judges to the Supreme Court with the advice and consent of the Senate.. . . .I don’t see anything there that says this power does not apply in the last year of a president’s term. . . and I don’t think Scalia would either. . . . the President has a job to do and so does the Senate.. .. .they should both get on with it. . .

  • Cotour

    The president can nominate whom ever he wishes, when ever the opportunity presents itself, but the Senate does not have to approve them.

  • Frank

    You are correct Cotour. The Founders defined the executive and legislative branch responsibilities and intended the nomination/hearing/confirmation process to be political. The President nominates and the Senate consents or not (either via thumbs up, down or delay). There is no timetable. The coming battle will be pure politics with both sides citing history and claiming the moral ground. In the end, regardless of what the president does, the constitution gives the final say to the Senate.

    I believe Obama sees this opening as a chance to build on his legacy and I can’t imagine him nominating someone from the center, much less an originalist like Scalia. Therefore I think its wise that the republican Senate exercise its right and not give in to political pressure.

    Even when this vacancy is filled, I also expect another opening soon. There are several on the bench who may not last for the next 4 years.

  • D K Rögnvald Williams

    I heard on Bill Bennett’s show that Congress must be adjourned ten days before a recess appointment can be made.

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