by Don Brown
The United States Constitution, at Article II, Section 2, Clause 3, provides that [t]he President shall have 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.”
In other words, the Constitution allows the president to make recess appointments, which are temporary, but effective, while the Senate is in recess.
This includes the power to make recess appointments to the Supreme Court.
Why is there a need to do this?
Because this presidential election is a litigation fiasco waiting to happen, creating a compelling reason for a recess appointment, followed by permanent confirmation of the recess appointee. The Supreme Court does not need to be divided four-four on matters that might adjudicate a presidential election, not for one second longer than it needs to be.