The window is still open on President Obama’s option of replacing the late Supreme Court Justice Antonin Scalia with a recess appointment, although the White House says the president won’t pursue such an antagonistic course.
The Senate is in the middle of a 10-day recess until Monday, giving Mr. Obama a chance to bypass Congress and install a successor quickly. Given Senate Republicans’ vow to block a nomination until the next president takes office in January, a recess appointment could be Mr. Obama’s only real opportunity to get a liberal justice on the bench.
Although prospects appear remote that Mr. Obama will get a nominee on the Supreme Court through the traditional process, the option of a recess appointment comes with major drawbacks such as igniting the Republican base in a presidential election year.
If a justice is installed through a recess appointment, he or she could serve only through the end of the next session of Congress — the end of 2017, at the latest.
Also, the Supreme Court narrowed the president’s temporary appointment power in a 2014 ruling that overturned Mr. Obama’s recess appointments to the National Labor Relations Board. In that decision, the court said the Senate has wide discretion in deciding when it’s not in session, allowing it to avoid a recess by taking even the most trivial action with only a few senators in attendance.