The hole in the middle…

While I would like to say I was completely immune to the tasteless celebrations of Supreme Court Justice Antonin Scalia on Saturday night as the news broke, I would be lying. I have known too many people who suffered directly and personally because of decisions Justice Scalia handed down in almost 30 years on the bench.

I’ve had some interesting questions posed in the last 24 hours, but let me clarify one point. While my initial response to Scalia’s death might have had a whiff of “Ding, Dong, the Witch is Dead,” I have deleted more than a dozen whiny posts in the last six months that beg the immortal question of fairness (“How can X die so young while Y is still alive?”) where most instances Justice Scalia = Y.

I just couldn’t bring myself to compare the two, or to publicly wish death on anyone. That said, I’m not going to spend a lot of time mourning a guy whose interpretations of our Constitution have done far more damage than good since he took his place on the SCOTUS bench. So don’t look to me for rejoicing or chest-beating. You’re not going to find either one here.

I say this with extreme prejudice, there are times when celebration is inappropriate, and this is one of them. As fellow member Ruth Bader Ginsberg so eloquently described recently, Scalia was as human as he was principled. Love him or hate him, he was true to his own view of the Constitution and his role in protecting it, even when the role he played was at odds (to put it mildly) with general liberal opinion.

Now that he’s gone, there’s a hole to fill, and a massive question about how that’s going to happen.

A friend asked me the following question, which I viewed as a post prompt:

I read this somewhere and wonder if it is truly possible:
“With the death of Antonin Scalia supreme Court justice, and congress in recess, president Obama could in theory appoint himself for the lifetime job, without a vote from congress, and move joe biden to the position of president changing the entirety of the Democratic nomination process and changing the balance of the court from conservitive [sic] to liberal causing trouble for Donald Trump.”


When constructing an answer to the question, there’s a whole lot to be considered.

  1. Can the President nominate himself?
  2. What would happen if this theory became a reality?
  3. Can the President appoint someone without the benefit of Senate approval?

We’ll take all of these in order, noting that I am in no way any sort of legal expert, just good at research and reasoning.

CAVEAT: I welcome adjustments and challenges as long as they’re civil. All comments are screened by definition, so your rant won’t be seen unless it’s civil and related to the subject. Don’t bother if you’re just going to rant and call names.

You’ve been warned.

Can the President nominate himself? 

Unlikely. There is no precedent whatsoever for such a thing, as attractive as it might be to entertain the notion, either from the perspective of wishful thinking or for conspiracy theorists who’d rather see the President behind bars.

Only one U.S. President has ever served on the Supreme Court: William Howard Taft, who was appointed by President Warren G. Harding after Taft stepped down from office, replaced by Woodrow Wilson in 1913 after the 1912 election.

It is far more likely that President Obama could be nominated by the next President, if that person is a Democrat, but I don’t think he would be approved by enough members of the Senate in its current incarnation, regardless of whether he appoints himself or the next President does it for him.

Precedent for seating himself? A totally different question requiring a lot more investigation.

What would happen if this theory became a reality?

If the President steps down for any reason prior to the end of his term, Vice President Joe Biden becomes President.

If you look at the history, the last two times a VP became President mid-term, there was no Vice President, so my initial response to the question posed was incorrect. I had suggested that it was possible Paul Ryan would become VP automatically, but that’s not the case. He does remain in the line of succession, however, if something happens to President.

Can the President appoint someone without the benefit of Senate approval?

In theory it’s possible, and if the Senate goes into recess this summer without confirming, by my cursory read of this Wikipedia article (which should tell you how authoritative this opinion is), it is possible.

And I would say, particularly since there is precedent, the chances are excellent, especially if the Senate stonewalls prior to the summer recess. That is, of course, unless they intend to work all the way through until November, which I doubt seriously.

As of this moment, whether President Obama uses the President’s Day recess (which is just barely long enough) or he waits until summer, the effect is the same, and likely just as controversial.

So what happens if the Senate gets its way?

Great question. No, really.

Leaving the court evenly split–with only a few justices willing to straddle the line–could set up a number of the remaining court cases for a tie, which tosses the decision back into the laps of the Circuit courts. Or, if the less conservative Justices opt to side with the liberals, could change the answers in ways that are likely to make the conservatives in Congress regret their long term inaction.

In other words, that tricky law of unintended consequences could backfire big time with Congress this November, when all seats in the House are up for re-election, along with a third of the Senate. By my count, there are just 15 seats needed to take the majority back in the Senate. Of those seats, only two are Democrats running unopposed for re-election. The rest of the 34 seats (in this year’s election) are either held by incumbent Republicans who are also running unopposed (two) or with Republicans or Libertarians but no Democrats.

If Trump’s candidacy has proved anything, the Republicans don’t have a lock on their electorate after all. This could prove to be the catalyst for the same sort of rout we saw after the government shutdowns of the 1990s. Not guaranteed by even the smallest stretch, but still possible.

If that’s what it takes, so be it. Congress has abrogated its job for too long. It’s time to elect people who will take their responsibilities to the entire population of the US (and not just to its richest 1%) seriously. That’s what Senator Sanders and Former Secretary Clinton are preaching, and it’s what I believe.

Let this be the litmus test: Can Congress get its act together or will it leave the responsibility to our President?

I predict it’s going to be a very long year.

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