Well, here is what happens when the shoe is on the other foot. After the death of Supreme Court Justice Antonin Scalia, you can bet that the Democrats will pitch a temper tantrum over this and spineless Republican senators will be prone to capitulate. Anyone realize what senate Democrats passed in 1960 to fight off President Dwight Eisenhower’s Supreme Court appointments? They passed S.RES 334, which expressed “the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.”
The vote ended with 48 Democrats in favor and 4 opposed, along with 33 Republicans against the resolution.
According to GovTrack:
This vote was to kill a nonbinding resolution proposed by the Democrats who hoped to prevent President Eisenhower from using recess appointments to fill a vacancy in the Supreme Court. A recess appointment is made while the Senate is in recess, and while such appointments do not require Senate approval they instead expire at the end of the subsequent legislative session (these days, a calendar year).
The Washington Post explained:
Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment. Not surprisingly, the Republicans objected, insisting that the Court should have a full complement of Justices at all times.
These days, the Senate often holds pro forma sessions, by gaveling-in for one minute each day, rather than go on recess in a time when the President is expected to use the recess appointment or pocket veto power. On Feb. 14, 2016, President Obama stated that he would not use the recess appointment power to fill the vacancy caused by the death of Justice Scalia, which occurred during a Senate recess.
The problem in all of this is there is nothing in the Constitution that allows for the Senate to restrict a President from appointing judges in an election year. However, they do have the power to confirm or not confirm those appointments.
We already know that Barack Hussein Obama Soetoro Sobarkah has engaged in making illegal recess appointments, but the Congress has failed to hold him constitutionally accountable through impeachment for his actions. And that illegal action was one of hundreds for which Congress should have dealt with him constitutionally.
Frankly, I can see this being thrown in the faces of Democrats over the next few weeks and used as political fodder in campaign ads, of which, to be honest, I’m already sick of the politicking on both sides. Give America 500 farmers and regular Americans who know their Constitution and who fear the God of the Bible and know His Law in DC for one month a year, and justices who are trained in constitutional law not case law, and we would see a drastic turnaround overnight. However, that would require Americans to actually repent of their own wickedness and political idolatry, wouldn’t it?
What’s even more hypocritical in this situation is that as Obama claims to be doing his constitutional duty by appointing a judge to the Supreme Court and calls on Congress to fulfill their constitutional duty, we need to be reminded that in January 2006, Obama joined then senator John Kerry and 23 other senators in filibustering the nomination of now-Justice Samuel Alito. I think it’s high time to return the favor.