WH Reportedly Considering Recess Appointment (for Rehnquist)

[Rose Siding]

The sources are unnamed "administration officials" and an "insider" but FWIW...

Guest: Amy Sullivan
RECESS APPOINTMENT?....Just when you thought the various post-election legal nightmare scenarios couldn't get worse. U.S. News & World Report is emailing around some reporting that indicates the Bush White House may be considering a recess appointment (requiring no Senate approval, remember) to replace Chief Justice Rehnquist if he steps down for health reasons:

"Even though the U.S. Supreme Court has said Chief Justice William Rehnquist will return to the bench following cancer surgery, administration officials are quietly considering candidates to replace him and even the possibility of making a recess appointment. The officials said that they do not want to talk about the process publicly in the last week of the presidential campaign. However, one insider said that the West Wing is considering what would happen if the judge left the bench soon and if a close election next Tuesday meant an evenly split 4-4 court was to decide the winner. Such a situation would likely mean that a lower court's ruling on an outcome would be final and officials are worried that it would go against the President."

http://www.washingtonmonthly.com/archives/individual/2004_10/004995.php

[PermanentRevolution]

1. Can he do that?

I didn't think you could use recess appointments for the Supreme Court, for some reason.

[dolstein]

8. Of course. Earl Warren was a recess appointment.

In fact, the Supreme Court was considering a very important case at the time. You may have heard of it -- Brown v. Board of Education.

Of course, Warren was subsequently confirmed by the Senate. I'm not sure a Bush recess appointment would have such luck.

[Kagemusha]

2. Does the constitution allow this? It's the supremes, not reg stuff.

Just wondering out loud because, I thought that supreme court nominees had to get confirmed like cabinet officers, and like cabinet officers, you can't recess appoint because they're not exec branch.

[bluestateguy]

3. Let me slightly disagree with the conventional wisdom here

Rehnquist's replacement may not be as controversial as say O'Connor's, or Stevens. If a hard line conservative like Rehnquist was replaced with another conservative or moderate-conservative it might not be the polarizing battle royale that will come when Sandra Day steps down or the liberal-leaning justices.

[aquart]

9. George Bush appoint a moderate???????????

He will appoint an extremist who will vote to make him president. The problem will be when O'Connor refuses to join.

In other words, the Supreme Court will have to refuse the case and throw it to the Republican House, because a vote would throw it to Kerry, not Bush.

Then the House, however Lame Duck it may be, will destroy the United States. Or maybe not. Going against a huge popular vote might not be immediately forgotten.

I would, for instance, put out fliers with their names for every state, wouldn't you? On every tree and bush.

And I guess we could start calling it the Hell House.

[eriffle]

4. I doubt it

First of all, it's not going to be close. I hate to say it, but if the forces of evil are going to steal it, they're going to steal it by enough that they don't have to spend any of their money defending it. However, I think Kerry is going to win easily, possibly with a higher EV margin than Clinton in 96. Secondly, this would reak of politics and if he wasn't illigitimate enough, this would make it even worse. If there was an issue with a state's electoral votes, the electoral college would still meet at it's scheduled time, and if no one has 270, it'll get kicked to the house for a vote. The Constituion allows for this, and if Rehnquist can't serve, this would be the way to go.

[JohnnyRingo]

5. To put it in perspective.....

Buxh will replace a "conservative asshole" with a "right wing nutjob".
Let's hope this is his last appointment, If so....No harm no foul.

There will still be at least two appointments by JK.
That will leave a good fair balance.

[Randi_Listener]

6. Floater

The fuckfaces float these stories to check reaction. Then when they get horsefucked, they retract the story and say it's not true.

[0007]

22. How true!!

[Tennessee Gal]

7. What is the procedure for filling a vacancy on the Court?

What is the procedure for filling a vacancy on the Court?
Article 2 Section 2 of the Constitution specifies only that the president ". . . by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court . . . ." In practice, when a Supreme Court vacancy occurs, the president selects a nominee, whose name is forwarded to the Senate for consideration, first by the Senate Judiciary Committee and then by the whole Senate. That consideration ultimately involves a vote by the Senate to confirm or deny the appointment. If more senators vote for than against confirmation, the nominee is confirmed as a lifetime appointee to the high Court. If the vote for confirmation fails to gain a simple majority of the votes cast for and against the nominee, then the nominee is rejected and the president submits another nomination.
For greater detail about the constitutional and the extra-constitutional setting of the appointment process, see Watson and Stookey, Shaping America: The Politics of Supreme Court Appointments , pp, 7-13.

http://partners.is.asu.edu/~george/vacancy/faqs.html#procedure

[Hamlette]

10. I think a recess appointment "expires" in one year if not confirmed

[wtmusic]

11. Someone help me

I thought Senate approval was required, even on a recess appt. No?

[Rose Siding]

19. No

The "recess" part means while the Senate is in recess. They aren't even meeting so they *can't* take it up as a confirmation. It's all on the president's say-so.

[dave123williams]

12. Are they TRYING to start a Civil war or something?

[punpirate]

13. This clarifies the situation a bit....

http://www.arches.uga.edu/~shaoming/

From that article: "Upon conferral of a commission by the President, a recess appointee holds and exercises the full power of the office until the end of the following Senate session."

From this, particularly in view of the fact that the appointee may only hold office until the next Senate term is concluded, the thinking behind this is very clear. The WH may need a conservative majority to decide in its favor because of electoral disputes.

There is nothing in law which requires the Supreme Court to operate with nine justices, or to have an odd number of justices to definitively decide cases (at times, there were twelve justices during FDR's term in office, I believe).

There is no mandate in law to immediately replace Rehnquist were he to become incapacitated. The apparent fear of the WH is that Rehnquist would not be physically present at a time when the court was in session for the purposes of deciding election disputes. Theoretically, Bush could make a recess appointment without requiring Rehnquist to resign. That recess appointment would last until the next Senate session, i.e., after the election and through the Senate term, which would close in January, long enough to hear any cases that might arise. Cases resolved on the basis of conservative bias therefore would be 5 for, 4 against, one abstaining through absence.

[billyoc]

15. Rehnquist can vote from anywhere but the afterlife

He doesn't have to be present, and could easily vote even from a hospital bed.

[punpirate]

16. Au contraire....

He has to be present to hear arguments to vote. If he's hospitalized, they'd have to wheel him in for arguments. By current judicial standards, he would have to recuse himself from any case from which he was absent from arguments. One can't vote on a case one has not heard.

Cheers.

[Jacobin]

20. Do you have a link for that?

I don't know the answer but was wondering where that came from.

Thanks in advance

[KharmaTrain]

14. This Story Was One The GOOP Didn't Want Out

If a wingnut Supreme Court was a popular or important issue to his base, this would have been part of the Bunnypants stump speech all year, it hasn't...there's a reason why...they were hoping to ramrod changes through in a second term.

From what I've read Rehnquist has been in poor health for some time and his throat cancer was known for a while...the emergency tracheodomy is one that's done at an advanced stage...and if you'll notice his surgery happened on Friday and wasn't reported until Monday morning...then quickly and reluctantly. In fact, word of him being back on the bench Nov. 1 was on CNNservative within the hour. RoveCo. doesn't want this geanie out of the bottle...it'll soften that very, very soft moderate faction...the "security moms" even further.

Yes, a deadlocked court would be Rove's worst nightmare as his gamble is Repugnican legislatures and courts in Ohio & Florida that would step in on any close or disputed vote. Now I know the Democrats still dominate the Florida Supreme Court, but not sure of what happens in Ohio...but in either way, a deadlocked court would checkmate the ultimate Rove endgame.

Yes, Bunnypants can attempt a recess appointment, but it's a non-issue if Bunnypants wins since he'll have the go ahead to nominate not just Rehnquist's replacement but also for O'Conner & Stevens and maybe several more...accomplishing the real wingnut goal of long-term right wing control of the court.

If Kerry wins then any appointment will be filibustered. I sure hope Kerry doesn't make the mistake Clinton did in those itnerim days where Poppy sent troops to Somalia and then pardoned all his buddies.

Cheers!

[snowbear]

17. Hmm, I thought so too...

Jeffrey Toobin mentioned today on (whatever the hell network he's on) that they can't appoint vacancies..

It came up because he was asked "What if the vote is a dead tie and there's only 8 members of the Supreme Court available?"

:think:

[Czolgosz]

18. Does anyone doubt that Bush would appoint Scalia to CJ?

I think the real question would be who Bush would appoint to replace Scalia. I think Alberto Gonzales WAS the odds-on favorite but his hope faded with the release of his memo describing the Geneva Conventions as "obsolete" and "quaint" despite the fact the Conventions were encoded into federal law less than a decade ago in the 1996 War Crimes Act.

[yellowcanine]

21. Rehnquist would have to resign or die first. No vacancy - no appointment.

4-4 tie? Tough noogies, Karl. Anyway it is moot. In the unlikely event that there is a case to be heard, you can bet Rehnquist will drag his sorry ass in there to hear it.

[Supersedeas]

23. To talk about the process publicly would mean OPEN/HONEST govt

you've got the wrong croud for that.