I couldn’t have disagreed more with Mr. Originalism, but our thoughts go to his family and friends, who are mourning the passing of the Supreme Court justice who died this weekend while on a trip to Texas.
The speculation about his possible replacement started immediately. Could Pres. Obama, a Democrat, make an emergency appointment? Well, there’s this:
But then, in June 2014, the Supreme Court struck down the option for recess appointments, though that decision seemed to be focused on the National Labor Relations Board. According to the SCOTUS blog:
…the Court upheld his power to make other recess appointments – as long as they are made during recesses that last at least ten days.
Also from that blog:
…the Court said that any recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than ten days will, in the normal case, also be too short to necessitate a recess appointment. (The Court added that there may be “very unusual” cases – such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response” – in which recess appointments would be permitted even though the recess was still shorter than ten days.)
Could Obama, himself, serve once his term is up? Candidate Hillary Clinton “loves” the idea. Her Democratic opponent, Sen. Bernie Sanders, chastised Republican Senators for dragging their feet on an appointment. Pres. Obama, himself, has let it be known he’ll suggest a successor “in due time.”
No one is asking me, but I’d love to see Anita Hill on the bench, and not just because of this:
And thanks, Cynical, for your contribution on this.