Replacing Scalia The strategic choices for a Democratic win

I'm sure the late Supreme Court Justice Antonin Scalia would be both startled and grinning at just how fast the Republican Presidential candidate lineup and Senate Majority Leader Mitch McConnell turned mourning his death into a divisive debate.

A Possible 2-Year Recess Appointment

By dying on February 13, 2016, Supreme Court Justice Antonin Scalia instantly created a whirlpool of procedural speculation. Congress is in its normal President’s Day recess. The Senate last met on Thursday, February 11, during which it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution thus making it a concurrent resolution which you can view here.

Even Fox News' well respected Congressional Reporter Chad Pergram acknowledges "Both bodies of Congress are operating in the perfect parliamentary status in which a recess appointment would be applicable."

What Pergram is referring to is Article II, Section 2, Clause 3 of the Constitution which states: "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.”

Ironically Republicans became so incensed about some NLRB appointments in 2012 that they sued President Obama resulting in NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING ET AL. (2014)12-1281. Much deliberately inaccurate information about how that case applies to the current situation is being bandied about by the news. If you read the decision, key language makes it clear that a recess appointment made right now, before February 22, to replace Scalia would be perfectly legal pursant to Canning (emphasis added):

A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power. Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days.

Historical practice also strongly favors the broader interpretation. ...The Court is reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long.

Although the Senate’s own determination of when it is and is not in session should be given great weight, the Court’s deference cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.

In this case, the House has consented to the recess, the Senate clearly isn't in session to act on any matter, and this situation does follow the traditional practice.

Additionally, one provision of the recess appointment clause apparently confuses pundits  (emphasis added) - "which shall expire at the End of their next Session." As indicated on the Senate web site, the current session of Congress began Jan 4, 2016, and will end sometime in December assuming they follow normal practice. The next session will begin in January 2017 and end in December 2017. Thus, a recess appointment today could effectively be a two year appointment which even the Conservative journal the National Review explains.

There are enough cases on the current SCOTUS docket of serious concern to liberals and to the Obama legacy to make this approach tempting. But this approach could create a single issue for the Republicans to use to galvanize their voters and many independents. So far every indication is that it is not as tempting to the Obama Administration as creating a high-profile issue-oriented confrontation with Republicans in a Presidential election year.

The Long Game - A Democratic President and Senate

Former Constiutional Professor President Obama might decide to play the long game. He could begin by embracing a preference stated by Senate Democrats as described in the Washington Post:

...In August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” Each of President Eisenhower’s [three] Supreme Court appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times. 

Instead, Obama could nominate a candidate - let's assume he won't nominate a rabid lefty. All the current Republican Presidential candidates have embraced the words of Senate Majority Leader Mitch McConnell who stated the Senate should not confirm the nominee. This could focus the election on issues, some of which haven't even been discussed in debates. As even a conservative Wall Street Journal columnist discussing the impact of Scalia's death on the Republican candidates wrote:

The only person who may benefit more than Ted Cruz from Justice Scalia’s unexpected death is Hillary Clinton. Her campaign’s biggest challenge has been trying to convince young female voters that the fight for gender equality has not yet been accomplished. It’s hard to think of a more visceral example to make that argument than this.

Of course, his understanding of the situation was far too limited.

Every major segment of the progressive electorate can be energized by cases now before the Court. In addition to women's reproductive issues, cases already taken up affect environmentalists and climate change policy, voting rights and political representation in communities of color, university admissions and race, the fate of undocumented immigrants, mandatory union dues, and more. And, of course, the Democrats can beat a constant background drum rhythm about the Citizens United decision and campaign finance.

If a Republican-controlled Senate fails to seriously consider an Obama nomination, they likely will stimulate voter turnout which the Democrats need to win. If they do seriously consider an Obama nomination, they will end up creating high profile discussion about the issues and emphasize how important the election is for progressives, stimulating voter turnout.

A high voter turnout will assure a Democratic win for the Presidency. And an issue focused, Senate-aware voter will likely be energized about Senate elections in a year when 24 Republican Senate incumbents are up for re-election compared to 10 Democrats. That is bad news for Republicans.

Of course, choosing this long-game option could fail.

Option 3 - Do It All

A third option has been suggested by one writer:

Why not instead appoint a temporary Justice, someone old enough for it to be the capstone to a distinguished career, and then a different, younger, person for the permanent position. Make the temporary appointment someone very very liberal (Patrica Wald? Stephen Reinhardt?); make the permanent appointment someone more moderate.

It's worth considering.

A Potential Surprise Legacy

In any event, Scalia has left an unexpected legacy, if President Barack Obama, Hillary Clinton and Bernie Sanders don't blow it.

That legacy could be a generation of  younger voters who have learned that while it may be fun to get involved in a Presidential election, the fact is that under the Constitution every President has very limited power when it comes to domestic issues (as opposed to foreign policy).

Without a campaigning to assure a majority of the Senate and the House of Representatives will support your President, your enthusiastic campaigning is really just throwing your President under the bus when it comes to issues like the economy, discrimination, abortion, etc.