Tuesday will be President Obama’s final chance to get Judge Merrick Garland placed on the U.S. Supreme Court.
Tomorrow, there will be a 5-minute-or-less period of time between when the Senate gavels the 114th Congress out of session and the 115th Congress begins.
At this point, Obama cold take advantage of his recess appointment powers and have Garland temporarily placed on the bench, The Washington Times reports.
The move would be highly controversial, but that isn’t stopping many Democrats and liberal activists from encouraging Obama to follow through with it.
The Times described such an action as a “legal gamble” because although the constitution allows the president to make recess appointments, the Supreme Court limited this power in a 9-0 ruling in 2014 after Obama made appointments during a three-day recess in the middle of a congressional session.
Following this decision, Justice Stephen Breyer wrote for the majority and stated that for recess appointments to be valid, the Senate must recess for longer than 10 days.
Obama has not yet indicated whether he plans to try to make the appointment but, if he does, Garland’s tenure would only last until the end of the congressional session, which is December 2017.
William G. Ross, a law professor at Samford University, says while Obama legally has the power to make this move, it would be “politically unwise and damaging to the prestige of the court.”
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