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Trump has a dilemma
A pre-E-Day vote locks in a judge, but it'll be humiliating if the votes aren't there
In the lame duck, you may lose AZ, harder to get 50
Would the base be more juiced w/a vote in hand or by dangling the carrot? Who knows
But Trump has a 3rd option...
A pre-E-Day vote locks in a judge, but it'll be humiliating if the votes aren't there
In the lame duck, you may lose AZ, harder to get 50
Would the base be more juiced w/a vote in hand or by dangling the carrot? Who knows
But Trump has a 3rd option...
...a recess appointment...
...the Senate is scheduled to go into recess sometime after October 9 https://www.senate.gov/legislative/resources/pdf/2020_calendar.pdf Trump can then name a Justice, without hearings, without votes, and put him or her on the Court immediately...
...Eisenhower installed Brennan by recess appointment in Oct. '56, less than 1 month before Election Day
He did so for crude political reasons; he wanted to name a Catholic Democrat to help hold on to northeast states
This is from the book "Justice Brennan: Liberal Champion"...
He did so for crude political reasons; he wanted to name a Catholic Democrat to help hold on to northeast states
This is from the book "Justice Brennan: Liberal Champion"...
...More from "Justice Brennan: Liberal Champion"...
...Eisenhower got a little recess-happy. He named three Justices that way: Warren, Brennan and Stewart. All were subsequently confirmed by the Senate. But in 1960 a fed-up Senate passed a resolution expressing opposition to SCOTUS recess appointments... https://fas.org/sgp/crs/misc/RL33225.pdf
...But that's not a law. The Presidential retains recess appointment authority, when the Senate is truly in recess. Obama was thwarted when he tried to recess appoint during "pro forma" sessions; SCOTUS ruled that out of bounds. McConnell in Oct. could have a true recess...
...Is a recess appointment desirable for Trump and the Republicans? It's not permanent. The Senate would have to confirm to make it lifetime. That could still be done in the lame duck, but the votes have to be there. If not, the victory could be short-lived...
...But what Trump may like, and Democrats may despise, is Trump would get a Justice in place *who could rule on any presidential election-related legal matters*
In fact, Trump may be far more interested in this short-term help than any long-term judicial legacy...
In fact, Trump may be far more interested in this short-term help than any long-term judicial legacy...
...But Democrats may not mind seeing Trump take heat for a recess appointment, helping fuel an election backlash that thwarts Trump at the ballot box and complicates McConnell's ability to make the appointment permanent.
But from Trump's perspective, a recess appointment may be the best base-juicing option. He gets credit for stretching the rules to the limit in service of their interests, but can still dangle the carrot at rallies: you better show up and vote if you want to keep it!
This is an important wrinkle... https://twitter.com/MaxKennerly/status/1307376807830786048
...I don't know either if there is a House-Senate recess resolution in place, but the agreement used this past summer involved "pro forma" Senate sessions that prevented recess appointments https://www.rollcall.com/2020/08/13/senate-breaks-for-august-recess-with-no-coronavirus-deal-in-sight/
However...
However...
...you may recall in April Trump threatened to force a congressional adjournment to give himself the opening for recess appointments... https://www.vox.com/2020/4/16/21223488/trump-adjourn-congress-recess-appointment-constitution-mitch-mcconnell
...The Constitution gives Trump that power "in Case of Disagreement" between House and Senate as to when to adjourn.
And a Senate resolution to adjourn cannot be filibustered. So McConnell, with a simple majority, could force a House-Senate disagreement...
And a Senate resolution to adjourn cannot be filibustered. So McConnell, with a simple majority, could force a House-Senate disagreement...
...The downside is it requires a vote. If the votes aren't there for a Justice, they may not be there for an adjournment/recess ploy. But maybe, before Election Day, a vote leading to a temporary recess appointment is more palatable to some than a vote for a permanent appt.
