Donald Trump has promised to name a Supreme Court justice in the mold of Antonin Scalia.
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On January 3, 2017, a very important window will open. All constitutional experts agree that President Obama has the power to appoint a justice of his choosing and fill the vacancy on the Supreme Court, without a Senate confirmation hearing. On that day, and that day alone.
The process is called, as he knows, an inter-session recess appointment. It would without question succeed in placing a justice of his choosing on the court for at least one year. Failure to do so would guarantee a politically motivated, right-wing majority for decades to come.
Obama's critics say that a recess appointment would be bad form, or an expression of bitterness after a failed election. Far from it. The New York Times is quite correct in dubbing the open court seat as The Stolen Supreme Court Seat. It bears repeating that this appointment was President Barack Obama's to make. Open and shut.
Should Obama walk away from that, he would validate and legitimatize the Republican act of piracy. Moreover, he would be complicit in the greatest judicial coup in U.S. history. He would in effect become an active partner, a facilitator to the injustice.
While the appointment is Obama's to make as President of the United States, the seat belongs to the American people, and it is the American people whose best interests Obama is sworn to act upon.
There are two arguments that are often cited against a recess appointment. The first is that it would only be guaranteed to last one year, until December 2017. The second is that Judge Merrick Garland is currently Chief Judge of the U.S. Court of Appeals for the D.C. Circuit. It's a very prestigious post, and Garland might not want to give up that position for an appointment, even a Supreme Court appointment, that might only last a year.
To the first point, that a recess appointment would only last a year and that presumably not much changes in a year: Senator Mitch McConnell laid waste to that argument. He bought a year and stands poised to reshape the court for decades. A lot can change in a year. If McConnell finds himself on the receiving end of a one-year delay, he will probably call it treason.
To the argument that Garland might opt to return to the D.C. Court of Appeals rather than accept a one-year stint on the Supreme court: Obama is not tethered to the Garland nomination. He can place Garland or any qualified candidate of his choosing during a recess appointment.
Obama must not lose sight of what is at stake. It is not just his approval rating. It is the composition of the U.S. Supreme Court for decades to come. Obama acts in this regard not just on behalf of all Americans, but particularly on behalf of those who supported his ascension to the presidency. Among those constituents, support for a recess appointment would be overwhelming.
The perception of American voters is that Democrats don't fight. It cost them dearly at the polls this time and it will cost them every time, until they demonstrate that they will.
The composition of the Supreme Court is arguably of greater consequence than the office of the president. This is an enormously important decision. People are waiting to see a Democrat, any Democrat, stand up and make a fight.
Obama can lead that fight or run away from it. But he can't do both.
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