How Merrick Garland can still be appointed to the Supreme Court. (Maybe)

The Republican-controlled Senate refused to consider Merrick Garland to take the late Antonin Scalia’s place on the Supreme Court of the United States, gambling that a GOP successor could appoint a Justice more to their liking.  But the outgoing President can still gamble on appointing Garland during the brief – very  brief – recess between two sessions of Congress:

President Obama will have one last chance to force Judge Merrick Garland onto the U.S. Supreme Court on Tuesday — but it’s a legal gamble and one that has so many pitfalls that even those who say he could get away with it believe it isn’t worth the fight.

Mr. Obama’s moment will come just before noon, in the five minutes that the Senate gavels the 114th Congress out of session and the time the 115th Congress begins.

In those few moments the Senate will go into what’s known as an “intersession recess,” creating one golden moment when the president could test his recess-appointment powers by sending Judge Garland to the high court.

A smattering of activists has asked him to give it a try, but Mr. Obama has given no indication that he’s thinking about it. The White House didn’t respond to a request for comment for this story.


William G. Ross, a law professor at Samford University in Birmingham, Alabama, said Mr. Obama would have the power to elevate Judge Garland. But he said it would be “politically unwise and damaging to the prestige of the court.”

“It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political,” Mr. Ross said.

President Teddy Roosevelt was perhaps the most “aggressive” practitioner of the intersession gambit, using what The New York Times in 1903 dubbed the “infinitesimal recess” — the split second between the end of one session and the beginning of another — to appoint 168 officers.

Justice Stephen G. Breyer, writing the controlling opinion in that 2014 case, acknowledged Roosevelt’s move, though he called it an anomaly.

He said there’s a general presumption that recesses need to be at least 10 days for a president to flex his recess powers, though he left open the chance for an emergency.

Some scholars say the 10-day rule in his opinion is “dicta,” or nonbinding verbiage that doesn’t constrain the courts. Activists suggest Judge Garland could test the boundaries of unusual circumstances that Justice Breyer left open.

The consensus, though, is that Mr. Obama would be making a mistake to test it that theory.

It seems to me that the appointment process is already broken, given the way the Senate refused to even consider Garland for the position while Obama still had almost a year left in office.

The question is whether Obama wants to ensure a smooth transition to a Trump Presidency, or whether he believes the looming Trump administration deserves to be stymied and obstructed at every turn.  I can’t help thinking that if the roles were reversed – if a Democrat-controlled Senate had blocked a Republican President from making an appointment to the Supreme Court – the outgoing President would be waiting for the moment to strike.

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