That leaves one potentially big stick in Obama’s rapidly shrinking arsenal: recess appointments of judges to fill scores of federal-bench vacancies — up to and including Antonin Scalia’s seat on the Supreme Court.
But wait: Didn’t the Supreme Court eliminate recess appointments in a recent decision? Not exactly. In a 2014 decision, SCOTUS unanimously ruled that recess appointments by the president (which only remain in force until the end of the ensuing congressional session) could be thwarted by Senate “pro forma” sessions that technically keep Congress in session perpetually. But the Senate does have to eventually end the session before beginning a new one on January 3, 2017. And a precedent was set by none other than Republican Theodore Roosevelt that a president could make “intercession” recess appointments in the seconds between one swing of the gavel and the other. TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.
The pretext for judicial-recess appointments is clear enough: Even after Senate Democrats outlawed the filibuster for non–Supreme Court judicial (and executive-branch) nominations in 2013, once Republicans regained control of the Senate in 2015, they began slow-walking judicial confirmations. At present, there are 103 vacancies in the federal judiciary. When Obama took office there were only 54. He could make the argument that the federal courts have been hamstrung by these vacancies, and use recess appointments to fill some or all of them.
If he really chose to make an object lesson of the fruits of GOP obstructionism, Obama could wheel out the Big Bertha: a recess appointment of his Supreme Court nominee Merrick Garland, who has been outrageously denied even the courtesy of a confirmation hearing by Senate Republicans ever since his nomination in March. There is another Republican precedent for the recess appointments of a Supreme Court justice (under Eisenhower). Yes, Republicans could thwart it by belatedly taking up Garland’s nomination and rejecting it (though, they could face a Democratic filibuster unless they choose to kill that option, too). But it would sure get everybody’s attention in a way that could not help but cast blame back on those who obstructed Garland’s confirmation in 2016. As Dayen puts it:
It goes without saying that Obama appointing Garland in this fashion would be highly controversial. Indeed, it would make the nation’s collective head explode. Conservatives would demand the Court immediately block the appointment. However, it is likely they would need Garland to participate in a case that gets a ruling so they could have a plaintiff with standing to say they have been harmed by the Garland appointment. And then they would have to move that case through the lower courts. That process would take several months, and all the while the Supreme Court would have a center-left majority.
http://nymag.com/daily/intelligencer/2016/12/how-obama-could-still-go-nuclear-on-trump-and-the-gop.html
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