The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Michael Froomkin at discourse.net has a pretty clever idea for President Obama to use in filling the Supreme Court vacancy left by the death of Justice Scalia. [It resembles the proposal Jonathan Adler made here on the VC, but has a more strategic twist to it.] Three steps:
1. Appoint someone far too liberal for the Senate Republicans (but possessing impeccable judicial credentials) now, using the recess appointment power (which, just to remind everyone, comes from Article II Sec. 2 of the Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session"). [Froomkin suggests perhaps a distinguished retired judge, for whom this would be "the capstone of a distinguished career" and who will be able to resist the temptation to try to hang on to the position].
2. Announce that the new Justice (Justice Liberal) has agreed to step down as soon as the Senate confirms a permanent appointment.
3. Send up a different, more moderate nominee (Judge Middle-of-the -Road) to the Senate for confirmation to the permanent life-tenured slot.
It could conceivably swing some Republican votes towards confirmation, insofar as Judge MOTR will look much better in comparison to Justice L, and the confirmation of Judge MOTR immediately removes the Justice L from the High Court. And while it breaks from the recess appointment tradition (of sending the name of the recess appointee up to the Senate for confirmation while they're already sitting on the Court—Eisenhower did this for several of his appontees, includng Justices Brennan and Warren, and Justice Brandeis was nominated in this manner as well), it avoids the spectacle of the recess appointee "campaigning" for confirmation (by shading his or her decisions one way or the other in order to please the Senate).
When I first saw Froomkin's piece, I thought it was crazy—but now I'm not so sure.