Althouse: There will be 5 minutes today between the 114th Congress and the 115th Congress — will Obama try to use the recess appointment power to put Merrick Garland on the Supreme Court?

January 3, 2017

There will be 5 minutes today between the 114th Congress and the 115th Congress — will Obama try to use the recess appointment power to put Merrick Garland on the Supreme Court?

This Fox News report tells us "there’s no active chatter" on the subject, but if there were the plan, maybe there would be enforced quiet.

It's quiet. Too quiet.

The drama is over at noon.

Or is it?

61 comments:

Original Mike said...: I predict Obama does it. I hope I'm wrong.; 1/3/17, 8:41 AM
Original Mike said...: It would be in character for him.; 1/3/17, 8:42 AM
M Jordan said...: Obama is a complete failure as a president. He's also showing himself to be a failure as a human being in these final hours.

THERE. I SAID IT.; 1/3/17, 8:43 AM
SteveM said...: I find it curious that Merrick Garland himself did not withdraw after Trump's election.; 1/3/17, 8:43 AM
traditionalguy said...: Remember, it's not over until the Kellyann Conway interview says it's over.; 1/3/17, 8:44 AM
Levi Starks said...: Now you're just playing us...; 1/3/17, 8:45 AM
traditionalguy said...: As for Mullah Obama, he will keep setting off bombs like this at the north end of town while we ignore another 2 million Hispanic peasants storm over the former US border he ordered opened. The man has his priorities.; 1/3/17, 8:47 AM
wendybar said...: "If you had left your country and party in such a state, you'd be acting like a petulant jerk, too." -The last line in this article!And it is soooooo true!!
http://theweek.com/articles/670479/pathetic-end-obama-era; 1/3/17, 8:51 AM
Quaestor said...: This comment has been removed by the author.; 1/3/17, 8:53 AM
Ignorance is Bliss said...: ...will Obama try to use the recess appointment power to put Merrick Garland on the Supreme Court?

No, he won't. Zero chance. Even if it stands, why lose a seat on the D.C. circuit in order to get a relatively moderate liberal on the Supreme Court?

If he does a recess appointment, it will be a hard leftist who is not currently on an appeals court.; 1/3/17, 8:55 AM
GrapeApe said...: Considering the stunts he has pulled the last couple of weeks, I would not at all be surprised. He has shown himself with his petulant behavior to be capable of anything. Just trying to work himself into Carter territory for bad presidents and he doesn't even know it.; 1/3/17, 8:56 AM
ThreeSheets said...: Trump should tweet if any recess appointment is made he will move to increase the number of justices to 13 and pack it with far right wing justices.; 1/3/17, 8:58 AM
Original Mike said...: "Even if it stands, why lose a seat on the D.C. circuit in order to get a relatively moderate liberal on the Supreme Court?"

What's the current balance on the D.C. circuit? Don't they have liberals to spare?; 1/3/17, 8:59 AM
I'm Full of Soup said...: Well, IMO Obama is an angry POS so I say yes he will.; 1/3/17, 9:02 AM
Original Mike said...: From the article: "In other words, as a “recess appointment,” Garland would have to face Senate confirmation at some point."

Can the Senate choose the time of that confirmation process? Could they do it immediately?; 1/3/17, 9:05 AM
Dude1394 said...: I like the idea that IF this happened, the republican congress would disband themselves and end the session, fire the judge and then re-open. Thereby ending the lame ducks last gasp play.; 1/3/17, 9:06 AM
tcrosse said...: Maybe he'll appoint Hillary, to kill several birds with one stone.; 1/3/17, 9:06 AM
Mike (MJB Wolf) said...: Of all the stupid progressive ideas to scuttle Trump's presidency, this one is the stupidest.; 1/3/17, 9:10 AM
lemondog said...: Is he currently vacationing in Hawaii? Maybe he will forget while golfing.; 1/3/17, 9:14 AM
Mike Sylwester said...: During the 12 years of Presidents Reagan and Bush I, six seats of the Supreme Court were filled. That's an achievement that President Trump and future President Pence should try to match.

I propose this plan:

* Senate Republicans eliminate the filibuster for Supreme Court nominations

* Trump broadcast tweets every day demanding that too-old Ginsburg and Kennedy resign

* Trump fill the Scalia, Ginsburg and Kennedy vacancies by the end of 2018

* Republicans get 60-seat majority in the US Senate in 2019

* House impeaches and Senate removes Kagan and Sotomayor for gross incompetence in 2020

* FBI wire-tap Breyer and record him saying something racist. Blackmail him into resigning.

* Once all the Supreme Court seats have been filled with conservatives, the Senate Republicans offer the Democrats a deal to restore the filibuster in 2025.; 1/3/17, 9:17 AM
Bob Ellison said...: No. Obama will appoint himself to the SCOTUS. He taught con law! Perfect move.; 1/3/17, 9:17 AM
Bushman of the Kohlrabi said...: Can he appoint himself?; 1/3/17, 9:17 AM
Anonymous said...: Not Going to Happen. Period.

Why?

1. The Senate will nuke the filibuster rules on SCOTUS
2. On Jan 20, the Senate can vote itself into recess (with the easy consent of the house). That ends the "Recess Appt". Garland is out of both jobs.
3. The Left gets 2 weeks of Garland on the SCOTUS and loses a lifetime seat on the most important Appellate Court?
4. The whole gimmick is sleazy

The GOP should be so lucky as fot Obama to try; 1/3/17, 9:18 AM
rehajm said...: I'm sure that we can handle this situation maturely, just like the responsible adults that we are. Isn't that right, President Poopy Pants?; 1/3/17, 9:18 AM
Scott M said...: I saw a lot of speculation that he wouldn't do this because it would look bad. I'm not sure that's ever stopped him before.; 1/3/17, 9:21 AM
Scott M said...: Plus...wouldn't you just be trading a lifetime of Judge Garland for a year of Justice Garland?; 1/3/17, 9:21 AM
Unknown said...: I don't think Obama will do this to put Garland on the Court. No, he'd pick William Ayers or Valerie Jarret or someone like that if he were to try it.

Likely, he'd put Hillary on there. Why not? Sure, Hillary's old and dying, but the seat's lost anyway. Hillary likely stands the best chance of being a hard left liberal that might not be rejected by the Republicans.... anti-women, she did "win the popular vote" after all.

Plus, it ends her career as a presidential candidate for sure.

He can't nominate himself, so Hillary's the biggest knife in the back left for the US.

--Vance; 1/3/17, 9:24 AM
khesanh0802 said...: As Unknown says this would be a pyhrric victory because it could be immediately negated, but as AJ Lynch says Obama is enough of a narcissistic asshole to do it. The childish behavior by parts of the Democratic party and its enslaved press has to be making even those who were hesitant to vote for Trump completely convinced of the correctness of their choice.; 1/3/17, 9:34 AM
PB said...: Notice how quiet the MSM is about it? If the situation were reversed, they'd be all over Republicans, incessantly asking about it, raising the issue, trying to force them to say they wouldn't do it.

Recess appointments only last until the end of the next Senate session. I suspect some important coordination by the President, Vice President and Senators Schumer and Durban. Mere recess appointments for the things that don't require Senate confirmation, and Senate trickery to nominate and confirm Garland and as many open federal judges as they can before all hell breaks out.; 1/3/17, 9:38 AM
Fernandinande said...: There will be a five minute window between when the 114th Congress adjourns and when the 115th Congress convenes.

Why?

President Teddy Roosevelt seized the short period between the two Congresses to make 168 appointments to various executive branch and judicial posts – widely viewed as a remarkable power grab.

Will the fourth-worst president imitate the third-worst?; 1/3/17, 9:40 AM
Mike (MJB Wolf) said...: Vance: He can't nominate himself, so Hillary's the biggest knife in the back left for the US.

Frightening in its plausibility and astute reasoning, Vance!; 1/3/17, 9:41 AM
PB said...: Then, on Jan 15, there will be another kick in the teeth to Israel. They'll introduce a UN SC resolution passing sanctions on Israel, any nation that financially/militarily supports Israel, and any individual/organization that financially supports Israel. The International Criminal Court will be busy. it could start the war Obama always wanted.; 1/3/17, 9:42 AM
PB said...: Teddy R made 168 appointments. Obama will make him look like a piker.; 1/3/17, 9:43 AM
damikesc said...: It is a sad statement that so many allegedly intelligent people are trying to find a way to so fundamentally game the system as to make the country collapse.

I find it curious that Merrick Garland himself did not withdraw after Trump's election.

As am I. Makes one wonder why we'd want somebody so power-hungry on a court at all.

No, he won't. Zero chance. Even if it stands, why lose a seat on the D.C. circuit in order to get a relatively moderate liberal on the Supreme Court?

For two weeks to boot. It only takes the House's agreement for the Senate to immediately end and then start a new session. And the House, no doubt, would approve.; 1/3/17, 9:45 AM
damikesc said...: Then, on Jan 15, there will be another kick in the teeth to Israel. They'll introduce a UN SC resolution passing sanctions on Israel, any nation that financially/militarily supports Israel, and any individual/organization that financially supports Israel. The International Criminal Court will be busy. it could start the war Obama always wanted.

It'll also pull the US out of the UN entirely. Defund and then eject.; 1/3/17, 9:46 AM
Mike (MJB Wolf) said...: PB: Notice how quiet the MSM is about it?

I've noticed an unconscionable silence by Media about

- The unprecedented assault on electors in the run-up to the EC vote
- The involvement of the SORE LOSER HRC on the above
- The involvement of Obama and his OFA in the above

This is the one of the sleasiest episodes in a campaign of low-points perpetrated by the DNC-Media complex. The gate keepers have decided NOT to report.; 1/3/17, 9:46 AM
damikesc said...: This is the one of the sleasiest episodes in a campaign of low-points perpetrated by the DNC-Media complex. The gate keepers have decided NOT to report.

Cannot figure out why Trump might call out the media for doing a bad job.; 1/3/17, 9:54 AM
Pugsley the Pug said...: This comment has been removed by the author.; 1/3/17, 10:07 AM
Pugsley the Pug said...: This comment has been removed by the author.; 1/3/17, 10:08 AM
Static Ping said...: It's never a good sign for a republic when supposedly sane people are encouraging the use of obscure parliamentary maneuvers to get what they want. They don't seem to realize that the next step after "This is why you got Trump" is "This is why you are being shot at."

In this case the likelihood of any, even temporary, success is essentially nil, so I don't expect it will happen.; 1/3/17, 10:08 AM
Pugsley the Pug said...: If he does it, it would be Obama attempting to throw a wrench into the gears of government because his candidate and his policies lost the election that they had thought would be theirs for the taking. Maybe a better terminology would be "scorched earth". Except the ones getting burned would be the Democrats as Garland would not only have a cup of coffee on the court before the permanent nominee is confirmed and seated, but Garland's replacement by Trump on the Court of Appeals would be seated, in theory taking a "liberal" seat off of that court. Plus, Harry Reid opened the door to get rid of the filibuster in the Senate with his "nuclear option" years ago allowing Mitch McConnell the excuse to finish the job with any and all higher federal court nominees in this session when the Dems object (again, scorched earth). Obama is just throwing a temper tantrum if he does this going out the door. But then again, his legacy may not be the laws and policies he shoved through these past years but because of his and the Dems' arrogance, particularly the first 2 years of his administration (remember the "I won" quote from 2009?), the Dems have lost both houses, the presidency, most governors seats, and most state legislatures. That will be his true legacy, the deconstruction of the Democrat Party and not many prospects for the immediate future. Now, Trump has as big of an ego as Barry, so it will be interesting to see if the GOP totally submits to The Donald or has a backbone and do what is right for the USA and doesn't give him everything he wants, ensuring their destruction.; 1/3/17, 10:11 AM
Sammy Finkelman said...: There's no point in doing anything like this (aside maybe from emergency appeals) as the Senate is likely to confirm an appointee before any new cases can be decided. In fact it would rush the confirmation process, which is not something Democrats wold want to do. And it really does nothing for Merrick Garland. Does he get a higher pension? Do his opinions carry heavier weight? Will it get him more invitations to make commencement speeches and get honorary degrees and does he need them?

As it is, I heard on one of the Sunday shows, that maybe a Supreme Court nomination might be made on January 20, with the hope f getting someone on the court by April (the time for Ruth Bader Ginsberg to be cofired was 50 days) so that some cases in the 2016-2017 term might be heard and deciddd by 9 justices.; 1/3/17, 10:12 AM
Sammy Finkelman said...: Then, on Jan 15, there will be another kick in the teeth to Israel. They'll introduce a UN SC resolution

It won't happen. There's no reason for israel to worry about that. ON Januay 15, theer will be a meeting about Israel in PAris organized by France. I would not epect it to lead to any UN action by the end of that week. If Israekl thinks so they have really realy bad intelligence.; 1/3/17, 10:15 AM
Original Mike said...: I don't see an easy path for Trump getting a nominee confirmed because I don't see him getting 8 Democrat votes and I don't see McConnell getting rid of the filibuster. I don't know what's going to happen. Maybe Schumer extracting a huge price for Dem votes.; 1/3/17, 10:17 AM
Sammy Finkelman said...: Original Mike said at 1/3/17, 9:05 AM

Can the Senate choose the time of that confirmation process? Could they do it immediately?

Yes, that's right. They can just vote him down before 3:30 pm on January 20.; 1/3/17, 10:18 AM
Sammy Finkelman said...: They could do it on January 3rd too.; 1/3/17, 10:22 AM
Darrell said...: Call for an impeachment vote on Obama.; 1/3/17, 10:23 AM
eric said...: This is why the "news" is so terrible. Because they don't understand what the hell they are talking about. They pretend they do understand. Then they spread gossip. And then everyone else thinks they understand but are as ignorant as the media they are receiving their information from.

It's not going to happen. For reasons others have stated above.; 1/3/17, 10:27 AM
~ Gordon Pasha said...: Anent the TR appointments, Congress was typically not in session for 6 months of the year, from June to December.
https://en.wikipedia.org/wiki/List_of_United_States_Congresses; 1/3/17, 10:31 AM
Richard Dolan said...: Hard to believe that Garland would be party to a move like that, regardless of what Obama wanted.; 1/3/17, 10:33 AM
readering said...: The 2016 Term is half over. The 2017 Term will have no significant decisions before the recess appointment ends. There's no point in a recess appointment to the Court. But Garland would not lose his ability to judge. Former Supreme Court justices can sit as visiting judge in any circuit as often as they like. O'Connor does it. I think Souter limits himself to his hometown First Circuit.; 1/3/17, 11:22 AM
Paul said...: Why do the Republicans allow that 5 min break? Are they that stupid?; 1/3/17, 11:26 AM
Rance Fasoldt said...: I think Obama is playing the long game. His eyes are on the office of Secretary General of the United Nations. The latest (Antonio Guterras of Portugal) was selected in October and will hold office until the end of 2021. This may be why he was so focused on reducing the power of the USA. Obama would love having this country under the thumb of the UN, and be in the driver's seat.; 1/3/17, 11:44 AM
MadisonMan said...: Lots of bad predictions in this thread.; 1/3/17, 11:53 AM
rhhardin said...: Megyn Kelley moved to NBC in the 5 minute break, where she'll be a better fit.; 1/3/17, 12:01 PM
Original Mike said...: "Lots of bad predictions in this thread."

I don't feel ashamed of expecting the man who sicced the IRS on his political opponents, spied on journalists, intervened in the Israeli election, and committed all manner of deceits to get his Iran "deal" to pull a power play like this.; 1/3/17, 12:13 PM
Quaestor said...: Megyn Kelley moved to NBC in the 5-minute break, where she'll be a better fit.

Fox News has increased its lead over MSNBC and CNN substantially this year to the point that in November the network led all primetime basic cable channels (This may be an outlier caused by Fox's Election Day coverage. Anybody with his finger on the national pulse watched Fox, whilst other coverage was watched after-the-fact on YouTube as entertainment.) What's interesting is the hour-by-hour breakdown. Over the past seven to ten months Kelly's share has not kept pace with the rest of the Fox primetime lineup. During that period Kelly re-tooled her on-air persona from Nice Middle-American Girl Who Made It Big to Flinty Urbane Überbitch, which dismayed her fan base. Many have tuned her out, choosing to have the evening meal during her time slot rather than watch her — the TV stays on, but the sound in muted and the room is empty. Furthermore, I have noticed a perceptible degradation in her content. Her guests are too often second tier. Kelly is smart and nice to look at, but she hasn't made silk purses from the sow's ears conversations her show has become lately.

NBC is going to use Kelly to replace Katie Couric in the perky newsbabe post that the Peacock network pioneered. Over time Couric revealed herself to be grinning predator, willing to use the lowest forms of deception and trickery in the service of left-wing propaganda, this, for example. Also, Couric's neck is getting far too ropy for the perky bit.

I predict a similar decline for Kelly at NBC.; 1/3/17, 3:10 PM
Quaestor said...: I don't feel ashamed of expecting [Obama] to pull a power play like this.

It is possible, highly probable in fact, that Merrick Garland restrained our increasingly petulant passive-aggressive POTUS with a clear signal delivered over the long weekend that he would not accept a seat on the Court under those circumstances. They are becoming exceedingly rare but conscientious liberals are not entirely extinct — not yet anyway.; 1/3/17, 3:18 PM
Bob Loblaw said...: This would be dumb, even for the Democrats. This is not the kind of precedent you want to set just as you lose the reins to the presidency.; 1/3/17, 10:46 PM
Mike (MJB Wolf) said...: Quaestor: Megyn Kelley {snip] re-tooled her on-air persona from Nice Middle-American Girl Who Made It Big to Flinty Urbane Überbitch, which dismayed her fan base. Many have tuned her out...

I'll confirm this. My wife reacted pretty much as Quaestor says, and mostly to the personality switch-up to Feminist Warrior Kelly where she suddenly claimed to be standing up for every woman. WTF? You are a reporter, a presenter, you are not the news and we didn't tune in to hear your opinion on Trump.

She became much more emotional and inserted herself and her view of feminism into every story. She started calling Donald a sexual predator. Newt had to scold her on-air for phrasing questions with a "if he's a predator" preambles, and it didn't phase her at all. She called him out of control. We all knew right then she was auditioning for a part with the DNC-MSM complex. And then the way she went after Ailes after Carlson et al had already done the hard part of coming out and saying what they went through, after she used Ailes quote on her first big book to launch it, after she had publicly praised Ailes effusively to get what she wanted she turned and joined the "he said bad things to me" bandwagon. All her talk about empowering women etc and she did not use her nationally televised platform to do what was right. Not until after someone else had given up everything (G Carlson) to fight for what is right.

Kelly is a phony. She will fit in well at NBC and I don't mean that as a compliment to either party.; 1/4/17, 7:24 AM
Mike (MJB Wolf) said...: after she had publicly praised Ailes effusively

To clarify, all this happened in 2016.; 1/4/17, 7:26 AM