When most Republican senators head home for the Easter break, or spend the week in Cleveland for the party convention in July, or return to their home districts in October for election season, at least one lonely soul will stay behind to turn the lights on in the Senate chamber.
Even though the White House has already ruled out a recess appointment to replace the late Supreme Court Justice Antonin Scalia, GOP leaders aren’t taking any chances.
“I and many of my Republican colleagues have already agreed to be in Washington every three days for the rest of this year to gavel in this body in pro forma session so that this president cannot put in a recess appointment judge,” Sen. James Lankford, R-Okla., made clear in a floor speech Wednesday.
That means shifts of GOP senators turning up during the holiday later this month, the seven-week break in July and August, and throughout October. The process is fairly simple, with a senator taking the presiding officer’s chair and gaveling the chamber in and out of session without conducting any business along the way. Beyond parliamentarians, no one else need attend.
Senate Minority Leader Harry Reid, D-Nev., was the first to actually deploy the tactic, precluding President George W. Bush from making such appointments at the end of his administration.
According to a 2014 opinion by the Supreme Court in a case involving contested recess appointments to the National Labor Relations Board, the brief pro-forma sessions taking place every three days are sufficient to preclude a chief executive from executing the power to appoint any official when Congress is not in session.
President Barack Obama made those recess appointments, along with that of Richard Cordray to lead the Consumer Financial Protection Bureau, at a time when the Senate had said it was not actually in recess. That led to the legal standoff that reached the Supreme Court.
While Obama has said he won’t use the maneuver this time, a recess appointment to the Supreme Court would not be unprecedented. In fact, in 1956, President Dwight D. Eisenhower used the appointment power to put William J. Brennan Jr., of New Jersey on the court shortly the presidential election. Many believed Ike was trying to build support among voters in the Northeast, particularly those leaning to the left.
Lankford said the Senate GOP had lined up its members to gavel the chamber in and out — even over all breaks — as part of a “belts and suspenders approach,” to make sure there was no ambiguity in case Obama changed his mind about the recess appointment strategy.
“It’s the unknown of the last year of this president, what he would choose to do,” Lankford told Roll Call after the floor speech. “I mean, we’ve seen too many areas where the president works in the gray areas of the law, and so we can make it very, very clear the Supreme Court just ruled on this.”
Lankford is one of many senators who took the floor Wednesday in what turned out to be another day of sparring between the two parties over the fate of the Supreme Court seat, left vacant when Scalia, a conservative stalwart, died last month. Senate Republicans have vowed not to consider any nominee Obama puts forward to replace him, saying the next president should fill the seat. Democrats argue the Constitution dictates that the Senate consider the president’s pick.
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