Could Obama have made a recess appointment for Justice Garland?

[Funtatlaguy]

I’ve seen and heard it both ways on this.
Does anybody know if Obama could have gotten around McConnells shenanigans by making Garland a SCOTUS appointment without Senate approval?

[Thomas Hurt]

1. don't care, time to look forward not back.

[lapucelle]

2. McConnell never called a recess. The move was designed to prevent Obama

from making recess appointments of any kind.

[riversedge]

6. ah. I recall that issue now. Thanks.

[polichick]

3. Didn't McCONnell run a scam so they didn't technically recess?

[onenote]

8. Actually, the use of pro forma sessions to block recess appointments pre-dates McConnell

Reid used it as well.

https://www.cnn.com/2007/POLITICS/12/31/senate.pro.forma/

[gratuitous]

4. I think he could have

But it would have been pointless. Garland would have served through the end of 2016, then he would have had to be re-nominated by Obama's successor and confirmed by the Senate. If Clinton had won in 2016, that wouldn't have been a problem. But since Trump won, it's a cinch he wouldn't have re-nominated Garland, and the seat would be vacant awaiting Judge Boof, who, I've heard, likes beer.

The double whammy would be that had Garland been recess-appointed, he would not have remained as the Chief Judge of the DC Court of Appeals, where he serves today.

[Funtatlaguy]

5. Thanks

[rickford66]

7. If it was the other way around, the reThuglicans would have found a way to appoint him.

[onenote]

9. No. There was never a recess during which he could have been appointed.

There were suggestions that there was a one-second window on January 3, 2017 between the end of the 114th Congress and the start of the 115th Congress. That idea was debunked. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/the-real-reason-president-obama-wont-recess-appoint-merrick-garland-to-the-supreme-court/