News & Politics

Obama to Wait Until Senate Is in Session For SCOTUS Nomination

Obama to Wait Until Senate Is in Session For SCOTUS Nomination
(AP Photo/Pablo Martinez Monsivais)

There was a lot of angst on right-leaning websites all day about whether President Obama would try to make a recess appointment this week since the Senate isn’t in session.

There is some question as to what kind of recess the Senate is actually in and whether statutory requirements regarding a formal recess would be met for the president to be on firm legal ground to name Scalia’s successor.

But now a White House spokesman is confirming that the president will wait until after the Senate is back in session on February 22 to name a replacement.


President Barack Obama will not rush through a Supreme Court choice to replace Justice Antonin Scalia this week but will wait to nominate a candidate until the U.S. Senate is back in session, the White House said on Sunday.

“Given that the Senate is currently in recess, we don’t expect the president to rush this through this week, but instead will do so in due time once the Senate returns from their recess,” White House spokesman Eric Schultz said.

“At that point, we expect the Senate to consider that nominee, consistent with their responsibilities laid out in the United States Constitution,” he said.

Obama is traveling in California and returns to Washington on Tuesday. The Senate returns from recess on Feb. 22.

Making a recess appointment would have been extremely controversial.

The White House declined to give a more specific timeline for Obama to announce his nominee.

For his previous two Supreme Court picks, Elena Kagan and Sonia Sotomayor, the president took about 30 days each to announce his selection after their predecessors, Justice John Paul Stevens and Justice David Souter, respectively, said they planned to step down.

In remarks honoring Scalia on Saturday, Obama made clear he would not succumb to pressure from Republicans to leave the selection of a new justice to his successor.

The president, who leaves office in January 2017, said he would make his choice in due time.

“These are responsibilities that I take seriously, as should everyone. They’re bigger than any one party. They are about our democracy,” he said. “They’re about the institution to which Justice Scalia dedicated his professional life, and making sure it continues to function as the beacon of justice that our founders envisioned.”

I doubt whether the president would have cared much about controversy. Instead, as a practical matter, it would have been impossible to thoroughly vet a candidate in a few days. Fleshing out all the skeletons in a candidate’s closet, not to mention going over their legal opinions with a fine-tooth comb, is a process that takes weeks.

It’s possible that some candidates on the short list this time were also seriously considered previously, so they had already been partially vetted. But in the end, it’s probable that the president decided not to nominate a half-vetted candidate in order to avoid any trouble.

Not that it really matters. There is not going to be a groundswell of public pressure to hold hearings and vote to confirm a new Supreme Court justice. The inside-the-beltway pundits might get their panties in a twist over GOP “obstructionism,” but the issue will not resonate with the voters. The Supreme Court has functioned just fine in the past with eight members and it will do so again this time.