By Don Brown
The United States Constitution, at Article II, Section 2, Clause 3, provides that [t]he 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.”
In other words, the Constitution allows the president to make recess appointments, which are temporary, but effective, while the Senate is in recess.
This includes the power to make recess appointments to the Supreme Court.
Why is there a need to do this?
Because this presidential election is a litigation fiasco waiting to happen, creating a compelling reason for a recess appointment, followed by permanent confirmation of the recess appointee. The Supreme Court does not need to be divided four-four on matters that might adjudicate a presidential election, not for one second longer than it needs to be.
Remember Bush v. Gore?
Well, 2020 is about to make 2000 look like a game of pattycake. This time, the Democrats seek a litigious game of “pin the tale on the donkey,” hoping that at the end of the day, some federal court will pin the presidency upon their stumbling, blinded candidate, boosted by their constantly changing election rules and their unverifiable mail-in voting schemes full of the potential for fraud, mistakes, and inaccuracy.
But does history support such a move — a recess appointment to the Supreme Court?
You bet it does.
A dozen times, presidents have made recess appointments of justices to the Supreme Court prior to Senate confirmation. Eleven out of twelve of those recess-appointed justices were ultimately confirmed by the Senate. Recess appointments have been made by some of the most revered presidents of the ages.
If President Trump makes a recess appointment this October, say, of Seventh Circuit judge Amy Coney Barrett, he would join the ranks of presidential giants like George Washington, John Adams, Thomas Jefferson, Abraham Lincoln, and Dwight David Eisenhower. Three of those guys made it to Mount Rushmore, and all made recess appointments to the Supreme Court, ahead of Senate confirmation.
Washington and Eisenhower made multiple recess appointments to the Court.
For President Eisenhower, all three of his recess appointments became three of the most significant justices in history, including Earl Warren, who later became Chief Justice; Potter Stewart; and William J. Brennan, Jr.
This year, the Senate has a 25-day recess pre-planned from October 12 (Columbus Day) through November 6. The Senate calls these days off “state work periods,” the Senate’s fancy description for a “recess.” Put another way, they schedule that time (Oct. 12–Nov. 6) so they can go home, politic, and campaign, as some face re-election.
If a new Supreme Court justice is not confirmed by October 12, then President Trump should follow precedent set by two other Republican presidents, Lincoln and Eisenhower, and make it a great Columbus Day with a recess appointment to the Supreme Court.
The recess appointment would be valid through the end of the congressional term, in this case January 3, 2021. The Senate could and should permanently confirm the nominee before then.
The president would be within his constitutional authority to make the recess appointment, on October 12, assuming that the seat isn’t yet filled and assuming the Senate does in fact recess on that day, for the final push of the election season.
Why consider a recess appointment? Why not just make a nomination, now, and challenge Senator McConnell to bring a vote on the Senate floor after the election?
First, if the Senate delays until after the election, Trump will lose the opportunity to make a recess appointment, because the recess will be over.
But a more compelling reason exists: election shenanigans justified under the excuse of the coronavirus mandate that the seat be filled, either by recess appointment or permanent confirmation, as soon as possible.
The nation cannot wait.
The Democrats are apparently convinced that they cannot defeat Trump in a straight-up, traditional election — the kind of election where voters actually go to the polls, the hallmark of every presidential election in the nation’s history, and the model that provides the best opportunity for ballot security.
Worried and concerned about the weak magnetism of the less than electrifying Joe Biden, the Democrats have lawyered up and are ready to go, all champing at the bit to fight for the presidency in the courts.
Hillary Clinton, whom Trump whipped in 2016, has already publicly advised Biden to not concede the presidential race after Election Day.
Democrats in various states are moving the goalposts on ballot-counting times and procedures, changing the rules in the middle of the game. In Michigan, Judge Cynthia Diane Stephens has ruled that Michigan voters will now have their ballots counted in the general election for up to 14 days following Nov. 3, so long as they are postmarked by the second of November. The Pennsylvania Supreme Court recently ruled that ballots can be counted through November 6. On the other hand, “[t]he Pennsylvania Supreme Court declared that mail-in ballots must be rejected if they’re returned without a secrecy envelope, an envelope that the ballot must be placed inside, before being placed in a larger mailing envelope.”
And then there’s the impracticality and potential for fraud with the mass mail-in vote plan that the Democrats are pushing. In Mecklenburg County, North Carolina, where Charlotte is located, the most populated Democrat county in a swing state the president needs to win, more than 500 voters were mailed not one, but two ballots, causing the president to rightly complain in a tweet.
California is mailing ballots to every registered voter in the state. If those ballots are returned by mail, monitoring voter authenticity will be impossible.
Even though in theory, Republican appointees on the court now hold a 5-3 majority, on major recent decisions, including the salvaging of Obamacare, and on Louisiana’s recent pro-life law, Chief Justice John Roberts sided with the Democrats and cannot be considered constitutionally reliable by conservatives who have longed for a true majority on the court. Roberts is likely to vote with the Democrats, leaving the court hog-tied at 4 to 4 in an election dispute, unable to resolve the presidential election, thus making the court just as ineffective as the election itself.
Thus, in a 4-4 tie by the Supreme Court, the presidency could be decided by some federal appeals court.
To nip this dilemma in the bud, Trump should first act to make a recess appointment, either of Judge Amy Coney Barrett or Judge Barbara Lagoa. Both have been confirmed by the Senate in the last three years and are already vetted.
If the Senate chooses to go on recess on October 12, before making a permanent confirmation to fill the Ginsburg seat, the president should act.
After all, the presidential election may likely wind up in the hands of the Supreme Court, and a 4-4 tie would be a “supreme” recipe for disaster.