CNN SPECIAL REPORT: ( fictional ) January 3, 2017:
President Obama puts Garland on Supreme Court by recess appointment and Senate confirms Garland in parliamentary coup. Could it happen ?
“It was our Constitutional Duty to act” said President Obama
The President and Vice President take separate actions to preserve the fundamental rights of all Americans.
Republicans cry foul and pledge to file suit to enjoin Garland from being sworn in.
President elect, Donald Trump was speechless. Too stunned to tweet..
Obviously, this entire story is fictional at this point.
It shouldn’t be and despite the negative appearances of partisan politics it could actually happen and should.
The Senate failed to even hold hearings on the Garland nomination and cannot claim innocence in a process they set in motion.
How could Obama and Biden pull it off.
To do so you have to understand the following facts about the U.S. Senate.
The 114th Session of the U.S. Senate ends at noon (EDT) on January 3, 2017. The Senate is technically in Recess
At noon on 1/3/17 the terms of 34 Senators of the 114th session officially expires.
The 115th Session of the U.S. Senate begins on 1/3/17 , but not until Vice President Joe Biden officially gavels the Senate into session.
At this point the incoming Senators are scheduled to assume office upon being sworn in by Vice President, Joe Biden shortly after noon.
On 1/3/17 during the brief period between the noon end of term of 34 Senators and the swearing in of the new Senators the Democrats will have a 34–32 seat advantage plus 2 independents.(A Quorum)
After the new Senators are sworn in the Republicans will regain their Majority status.
Act number 1…Recess Appointment
CNN Special Report(fictional) #1
In a hastily called Press Conference President Obama announces his recess appointment of Merrick Garland as Justice of the Supreme Court.
Justice, Ruth Bader Ginsburg administers the Constitutional and Judical Oath of Office to Garland and congratulates him by calling him “Justice Garland”…
This is the easier of the two methods being discussed and it is the only method which has legal precedent.
On January 3, 2017 at noon the 114th Session of Congress ENDS. The Senate is in official Recess until the 115th session begins on January 3, 2017. when the Vice President gavels the Senate into session.
During this brief recess the President can under Article 2, Section 2 of the Constitution make a recess appointment of Merrick Garland as Justice of the Supreme Court.
The recess appointment would last for 1 year until the end of the first session of the 115th Senate on December 31, 2017.
There is historical precedent for Garlands recess appointment. In 1956 Justice William Brennan began his Supreme Court tenure by recess appointment.
A recess appointment of Garland is perfectly legal but it is also temporary. A recess appointment can only be effective for 1 year as opposed to a lifetime appointment that is confirmed by the U.S. Senate.
A recess appointment of Garland would provide the Democrats a 5–4 majority on the Supreme Court for the first year of Donald Trumps presidency.
After 1 year on the Supreme Court Justice Garland may prove worthy of permanent appointment by President Trump.
President Obama has little to lose by making a recess appointment as his political career will end on January 20, 2017.
He has taken so much disrespect from the Republican Party over the course of the last 8 years who could blame him for taking a final shot at embarrassing the GOP.
Act # 2 …. Confirm Garland by parliamentary coup.
This method is clearly one that would take an enormous act of political courage from the Vice President, Joe Biden and Senate Democrats at the risk of alienating Senate Republicans, President elect Trump and even the American people.
It would be the political equivalent of a “Hail Mary” football pass completed before the new members of the Senate are sworn in by Vice President Biden. The attempt, if successful, would ensure that the recess appointment of Garland becomes a “Lifetime” appointment.
This method of confirming Garland would proceed (if attempted) in a series of specifically timed actions that would occur within minutes after the end of the 114 th session at noon on 1/3/17
1) President Obama announces his recess appointment of Garland at 12.01 pm
2) Vice President Biden gavels in the 115 th session of the Senate immediately following President Obamas announcement,
3)Senator, Dick Durbin (D,Il), request and receives permission to address the Senate from Biden,
4) Durbin moves to suspend Senate rules and informs the Chair that the President has re appointed Garland for confirmation,
5) Durbin then calls for an immediate confirmation vote of the Senate which is voted upon by the remaining 66 Senators of the 114th session(a quorum)
6) Durbin refuses to yield the floor of the Senate thereby blocking a filibuster by Republicans,
7) Garland is confirmed 36–32
8) Biden then swears into office the new Senators and gavels the Senate into recess,
Republicans go berserk.
President Obama watches the entire series of events unfold on live TV special coverage. He smiles..
Back to reality ….
Could it happen ?
Potentially, but doubtful.
It would be out of character for both Obama and Biden to even make the attempt.
Should it happen ?
In this writers opinion, too much is at stake not to at least make the attempt.
Is it legal ?
Questionable, to say the least.
The recess appointment does have legal precedent and would likely withstand the almost certain legal challenge,
The Senate confirmation as described above has no legal precedent and would face obvious legal hurdles that could ultimately require a ruling by the Supreme Court.
Do it now while the chance to do so exist,
