For most of 2016, senate majority leader Mitch McConnell and the republicans vowed in word and writing, not to consider any Supreme Court nominee by then president Obama. This, in fact, is what they did. I've written before about this in Republican Senators are violating their Oath of Office by refusing to consider any Supreme Court nominee, in 2016, when there were still remedies open to Obama, including prosecution and jail time for violating their oath of office. I won't repeat the details of those arguments here.
However, now that McConnell is violating his own rule, and even by traditional senate "advise and consent" standards for supreme court nominees, rushing through a nomination, it is worth revisiting the question of whether there should now be some form of punishment for not considering any nominee during a much longer period of Obama's final term. There is no statute of limitations on violating the oath of office, though there are few precedents to go by; see the previously cited article for those, or this site, also cited in my 2016 article, and conveniently right-leaning so that conservatives ought to agree with it.
To make up for republicans' refusal to carry out their official duties, once a president Biden is appointed, he should nominate a 10th Justice for the supreme court. If the republicans refuse to consider it, or still have enough members to filibuster the nomination or have an outright majority still to deny the position, Biden should wait for the following 2021-2022 session and make a temporary appointment of the justice for that season. The period would be just about the same length of time that Merrick Garland would have served if confirmed, or even another nominated candidate. More importantly, it would be under the 1 year limit for most temporary Administrative appointees. Trump has already passed that limit and been admonished for it by the supreme court, and basically, some of his appointees are not serving legally, yet another reason to seek redress in the next administration.
This action is not without support. See here:
Thus, when the Senate is in recess, the President may make a temporary appointment to any office requiring Senate approval, including filling vacancies on the Supreme Court, without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (always less than two years).
If the Senate takes any kind of recess, Biden could fill the position then as a recess appointment too:
The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the Chief Executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action.
There was an interesting discussion about this at the time on Quora too, by
Michael Prete, who Managed Congressional campaigns, Political Science Major, JD
Q: Can President Obama eventually appoint Merrick Garland (or anyone else for that matter) to the U.S. Supreme Court if the U.S. Senate refuses to act?
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