Justice Scalia's Death Will Be the Defining Moment of the Obama Administration: The Senate is in Recess

President Obama and Justice Scalia’s fates are linked together. The President is fighting for his legacy, up to yesterday with the November election of his successor. Yet, the fate of much of his agenda lies in the hands of the nine justices of the Supreme Court. We know that the Court is generally split 5:4, usually on the conservative side. However, Justice Kennedy sides with the four liberal justices on some social issues, such as gay rights and perhaps capital punishment. Chief Justice Roberts twice saved ObamaCare, but he usually votes conservative. along with the conservative stalwarts of Justices Alito, Scalia and Thomas. Issues before the Court this year include abortion rights, affirmative action, immigration and Presidential discretion, public employee rights, religious freedom, and climate change. Other issues that periodically return to the Court are property rights under the Fifth and 14th Amendments, often intertwined with wetlands preservation and the definition of “waters of he United States.” At some point the FCC’s rules on net neutrality will work their way to the Court. Justice Scalia’s death comes at a rare moment when President Obama is in a win-win scenario. Everyone understands that the Republican Senate is not going to confirm one of his progressive nominees to replace the conservative Justice Scalia on the Supreme Court and thereby tilt the balance of power on the Court. He would normally welcome the sturm und drang of an epic election year confirmation battle in which he could play to the Democratic Party base. He would nominate, after careful political calculation, a liberal of a demographic or ethnicity the Democrats wish to garner on election day. The possibilities include a female African-American, Asian-American, or Latina, and then dare the Republicans to reject the nominee. He could do that for political advantage, but he probably won’t. He has a better, immediate option available – a recess appointment that will cement his legacy this fall. The new Congress takes office January 3. The President’s lasting legacy will be to stack the Court, at least though this year. He can do so for the next 8 days with a one year recess appointment. Congress through a joint resolution is in recess through February 22. The window will close after the 22nd. The Court has already rebuked the President on recess appointments 9-0 on appointments while Congress was technically in session. Thus, he will probably not want to push that button with a Supreme Court appointment during the session. My guess is that he will probably go for the sure thing and make the recess appointment in the next week. The Republicans will bitch and moan, but the President will be acting within his Constitutional rights. The Senate does not get a confirmation vote on an interim appointment, unless the President wishes to convert it into a permanent appointment. How ironic that he will adopt the originalism, the literal words of the Constitution of Justice Scalia. Article II, Section 2 of the Constitution provides: “The 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.” Justice Scalia was viewed as a conservative, indeed an originalist. His view was simple. The Constitution means what its words actually say. The words speak for themselves. It reflects the rule of law, the principles that have guided America since the founding of the United States. The opposite view, that of the liberals, is that the Constitution is a living document that evolves with changing mores and values. In other words, any five justices of the United States Supreme Court can rewrite the malleable Constitution anytime they wish. Justice Scalia’s untimely death is an Act of God for President Obama.