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Use the Recess Appointment Clause to Appoint a Progressive Black Woman to the U.S. Supreme Court: an Open Letter to Obama

Dear President Obama,

Today, while the Senate is still in Easter recess, is the exact time to appoint a very progressive black woman to the Supreme Court under the recess appointment clause of the Constitution. This clause gives the President the 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.” Art. II, §2, cl. 3.

1 The Senate is now in Recess for more than 10 days, from March 21 to April 1.

2 Even if the Senate goes into a pro forma session during this recess, the Senate announced that it is in Recess with respect to the crucial task of considering your initial Supreme Court nominee, Merrick Garland, or anyone else you may nominate for Senate consideration. The Senate leaders said they would not consider any presidential appointee until the next President is elected and takes office. Thus, even when the Senate returns to regular session with respect to other matters on April 1, the Senate remains in recess with respect to considering your Supreme Court nominee.

3 This case raises issues different from those in NLRB v. Canning because in this case the Senate leadership announced that the Senate was in recess with respect to the task of considering a nominee for the Supreme Court and the Senate did in fact fail to take any step to consider your nominee. In NLRB v. Canning, Senate leadership made no such pronouncement. In the present situation, the Senate majority leader announced that it is in recess exclusively regarding the constitutionally assigned business of considering a Supreme Court nominee.

Thus, a recess appointment is not only a valid way to fill the Supreme Court vacancy. It is the only way to timely fill the vacancy. A recess appointment satisfies the underlying purpose of the recess appointment clause of the constitution. Failing to use this constitutional power would mean acquiescence to the unconstitutional seizure of power by the Senate majority leader to block consideration and impose undue delay. Using the recess appointment power would put a stop to any future such attempt to unconstitutionally seize such power.

The court decided NLRB v. Canning in view of the purpose of the recess appointment power, “to ensure the continued functioning of the Federal Government when the Senate is away.” When the Senate leadership expressly announces that it is permanently away for the purpose of considering your appointment to the Supreme Court, the purpose of the recess appointment power has been satisfied. The time to use this constitutional power is today.

While the Senate has the exclusive power to give its advice and consent under the regular appointment clause, you, the president, have the exclusive power to make a recess appointment under the backup recess appointment clause. Yes, the Senate can be blamed for not using its constitutional power. In addition, it will be you, not the Senate, to blame if you also fail to use your constitutional power when the Senate is actually in recess and in addition when the Senate leadership has declared itself in permanent recess for considering any appointment you may make.

Today is the day to appoint the first progressive black woman to the U.S. Supreme Court under the recess appointment clause.

Thank you for considering this.

Best regards,

James Marc Leas

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James Marc Leas is a patent attorney and a past co-chair of the National Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza immediately after Operation Pillar of Defense in November 2012 as part of a 20 member delegation from the U.S. and Europe and authored or co-authored four articles for Counterpunch describing findings, including Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s Assault on Gaza. He also participated in the February 2009 National Lawyers Guild delegation to Gaza immediately after Operation Cast Lead and contributed to its report, “Onslaught: Israel’s Attack on Gaza and the Rule of Law.”

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