George Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Rutledge was already an Associate Justice.
New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session.
1795 was the 7th year of Washington's Presidency. There was no "lame duck" back then.
1956 was the end of Eisenhower's first term. Not "lame duck" in the purest sense, unless he chose not to run again like LBJ did in 1968.
The Brennan case might be an example of a path forward. If Obama nominates and the Senate blocks, and then if Obama recess appoints in the December window between the 114th and 115th Congresses, then the next President should not wait for the recess-appointed Justice to step down at the end of 2017 to make his appointment.
The next President should make his permanent nomination early in 2017 and let the Senate confirm. Then, it will be up to the "lame duck" Justice to either succumb to pressure and step down early to let the duly confirmed Justice take over, or defiantly remain on the Court to the bitter end, when the earlier confirmed Justice will then be sworn in.
-PJ
Republicans should stack the Court like Roosevelt wanted to do.
Congress can change the number of justices on the Supreme Court without a Constitutional amendment. They did it several times in the 1800’s. Maybe it’s time they at least doubled the Court to 18. With more members, it wouldn’t be so dependent on one member to tip it this way or that.
bookmark