It’s not surprising that the GOP senate and candidates for president are demanding that Obama forestall appointing a successor for Antonin Scalia’s seat on the Supreme Court. Increasingly the court has been the most important line of defense in protecting conservative causes and Scalia was downright medieval in his votes on women’s issues, race, and labor, inter alia. And with a senate firmly in Republican hands, the chance of Obama getting an appointment approved in this election year are about as good as the Cleveland Browns winning the Super Bowl next year, or maybe even in the 21st century.
But Obama can still get a new justice on the court and gain political capital in doing so, and Dwight Eisenhower showed him the way. In October 1956, William Brennan, who’d go on to be one of the more liberal Supreme Court judges in the 20th century, took his seat without a senate vote. Using powers established in Article II of the Constitution Eisenhower appointed Brennan during a senate recess, a period when the senate isn’t in session but the president can make appointments that last until the end of that session.
So Brennan took his seat in October, 1956, served as a justice and was then confirmed by the senate in 1957, with only Senator Joe McCarthy voting against him. Politically Eisenhower was able to shore up his election strength (the election was a month away, not, as in today’s case, almost a year off) by appointing a Northeast Catholic.
Obama’s never show the desire or guts to take on the GOP in this manner but now that he’s on his way out perhaps he’ll have some backbone. It would be harder, though not inconceivable, for the GOP to oppose a justice already on the court, and if the Dems hold the White House, they’d essentially have to confirm the recess appointment because they’d get another nominee that didn’t fit their medieval ideology. Politically, it would finally give credence to the liberal scare tactic of invoking the Supreme Court to justify going to the polls for such flawed candidates (Mondale, Dukakis, Gore, Kerry, etc.)–I can’t count how many times I’ve heard some Democrat say “but you have to vote, think of the Supreme Court.”
Now there’s something to that–reproductive health, the environment, and labor rights are actually at stake and having a justice who understands this is the 21st Century, and not some papal barony from 12th Century Europe, may actually matter.