Send a Tweet
Most Popular Choices
Share on Facebook 24 Share on Twitter 1 Printer Friendly Page More Sharing
Exclusive to OpEdNews:
OpEdNews Op Eds    H2'ed 10/9/20

If elected, Biden should appoint a temporary 10th Justice to the Supreme Court

By       (Page 1 of 2 pages)   3 comments
Become a Premium Member Would you like to know how many people have read this article? Or how reputable the author is? Simply sign up for a Advocate premium membership and you'll automatically see this data on every article. Plus a lot more, too.
Follow Me on Twitter     Message Scott Baker
Become a Fan
  (80 fans)

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?

Next Page  1  |  2

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

 

Must Read 1   Well Said 1   News 1  
Rate It | View Ratings

Scott Baker Social Media Pages: Facebook Page       Twitter Page       Linked In Page       Instagram Page

Scott Baker is a Managing Editor & The Economics Editor at Opednews, and a blogger for Huffington Post, Daily Kos, and Global Economic Intersection.

His anthology of updated Opednews articles "America is Not Broke" was published by Tayen Lane Publishing (March, 2015) and may be found here:
http://www.americaisnotbroke.net/

Scott is a former President of Common Ground-NYC (http://commongroundnyc.org/), a Geoist/Georgist activist group. He has written dozens of articles for (more...)
 

Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Follow Me on Twitter     Writers Guidelines
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEdNews Newsletter
Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Obama Explains the FEMA Camps

Was Malaysian Flight MH370 Landed Safely in Afghanistan?

Let the Sun Shine on a State Bank in Florida

Batman, The Dark Knight Rises...and Occupy Wall Street Falls

The Least Productive People in the World

Detroit is Not Broke!

To View Comments or Join the Conversation: