A Big High Court What-If

Posted October 27, 2004 at 6:37pm

Some analysts believe President Bush could make as many as three Supreme Court appointments if he wins a second term. But could he make one if he loses?

The revelation this week that Supreme Court Chief Justice William Rehnquist has been hospitalized for cancer treatment raises one more intriguing prospect in an election season already awash in intriguing prospects. If Bush fails to win re-election, he may yet be presented with a vacancy to fill on the high court — and a tempting chance to make history before leaving office by using his authority to make recess-appointments.

It’s a power that’s been used surprisingly often. According to the Congressional Research Service, 15 Supreme Court justices — among them two chief justices — were first placed on the bench through recess appointments. Included in this group are Chief Justice Earl Warren, as well as Justices Potter Stewart and William Brennan.

However, no president who has failed to win re-election has used the recess procedure to appoint a justice before leaving.

Still, the likelihood that Bush would make a recess appointment is regarded as remote. For one thing, Bush pledged in June to forgo further recess appointments this year after Democrats agreed to a procedure to consider some of his judicial nominees.

“Even if it would be possible, it’s not practically feasible to do it,” said Adam Elggren, a spokesman for Judiciary Chairman Orrin Hatch (R-Utah).

The prospect of a recess appointment would still be likely to tempt party activists, despite the obstacles.

“I think the only way it could be justified — except for [grounds of] strict partisanship — is if there’s an emergency or crisis of some sort,” said Sean Rushton, a spokesman for the Committee for Justice, a group that pushes for conservative judicial nominations. “Which is not impossible if you have another Bush v. Gore, or something like that.”

Rushton was referring to the Supreme Court decision that ended the statewide ballot recount in Florida in the 2000 election and effectively handed victory to then-Texas Gov. George W. Bush.

But Rushton suggested that a Supreme Court appointment by the president under similar conditions this year would be even more controversial, because of the impression that Bush himself, rather than one of his presidential predecessors, might well be responsible for choosing the deciding vote that could assure his second term.

“The level of irritation and vexation — not just on the [political] left but in the center — I just don’t see how that would be a winner,” Rushton said.

Presidents have traditionally made recess appointments, both for the judiciary and for other federal positions that require Senate confirmation, in circumstances in which the machinery of government has stalled or cannot function effectively without the appointees.

A recess appointee would be entitled to serve on the court or the government post until the end of the following one-year session of Congress — that is, until sine die adjournment in 2005.

“There’s always been a good deal of controversy around recess appointments, which hasn’t always worked to the benefit of the nominee,” said Donald Ritchie, the Associate Senate Historian.

Throughout the Clinton and Bush administrations, whichever party didn’t control the White House periodically alleged that the president abused recess appointments in order to bypass the advise-and-consent procedure in the Senate.

If a recess appointment would be unprecedented, lame-duck presidents have tried nonetheless to choose the next justice on their way out the door.

After losing his bid for re-election, John Adams, the second president, used a lame-duck session of Congress to force through a raft of judicial nominees, including Justice John Marshall.

The election of 1800 represented the first switchover of party control for both the presidency and the Senate. Adams, whose Federalist Party still controlled the chamber, used his temporary post-election advantage to win confirmations for his nominees. For that reason, they were not technically recess appointments.

Thomas Jefferson, the incoming president, tried but failed subsequently to impeach a couple of the justices, Ritchie said.

The evolution of Senate rules over time — not least the introduction of filibusters and cloture votes to the chamber — have all but ensured that no modern president will be able to repeat Adams’ trick.