Why a conservative legal giant would have hated Trump’s 'recess appointments' scheme

25 November 2024

President-elect Donald Trump has threatened to use a process known as "recess appointments" if Republicans in the U.S. Senate reject some of the more controversial picks for his incoming second administration. The idea is for Trump to force the Senate into recess, then ram through controversial nominees who might have had a difficult time getting confirmed by GOP senators.

According to New York Times reporter Adam Liptak, a major figure in the conservative legal movement would have hated Trump's scheme: the late U.S. Supreme Court Justice Antonin Scalia.

"Mr. Trump vowed 'to appoint judges very much in the mold of Justice Scalia," Liptak explains in an article published on November 25. "But Mr. Trump strayed from Justice Scalia's understanding of the Constitution earlier this month when he proposed using recess appointments to sidestep the Senate's constitutional role of vetting and approving his nominees. The idea would have alarmed Justice Scalia."

Liptak continues, "That is not speculation or inference. Ten years ago, Justice Scalia anticipated the current dispute in a blistering 15-minute statement delivered from the bench after a five-justice majority ruled that many recess appointments made during congressional sessions were proper."

The Times reporter recalls that in June 2014 — in the case National Labor Relations Board v. Noel Canning — Scalia made a "blistering 15-minute statement" in which he stressed that confirming presidential nominees via the U.S. Senate was a crucial part of the United States' system of checks and balances.

Scalia argued, "Governing would be much simpler if the president could choose the people he wanted to fill certain offices without having to get a bunch of senators to agree. But the point of the Constitution is not simply to make government run efficiently…. The only remaining practical use for the recess appointment power is the ignoble one of enabling presidents to circumvent the Senate's role in the appointment process."

President Ronald Reagan appointed three conservative justices to the U.S. Supreme Court during the 1980s: Scalia, the late Sandra Day O'Connor and Anthony Kennedy (who retired in 2018 and was replaced by Justice Brett Kavanaugh).

While Kennedy had strong libertarian leanings when it came to abortion and gay rights and drew vehement criticism from the Religious Right, Scalia was much more of a social conservative.

Read Adam Liptak's full New York Times article at this link (subscription required).

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