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I Know What You Did Last RecessBush could appoint the tie-breaking justice in next month's Bush v. Kerry.

By Mark Moller
Posted Thursday, Oct. 28, 2004, at 5:03 PM ET

Supreme Court watchers tell us the 2004 election probably won't implode with Bush v. Gore-style litigation. I'm not inclined to listen—if only because this advice isn't in keeping with the Halloween spirit. So, here's an election "horror story" that should get the blood racing:

First, imagine complications permanently incapacitate Chief Justice William H. Rehnquist, who is in the hospital recuperating from serious surgery, rendering him unable to carry out his Supreme Court duties. Second, suppose the presidential election is thrown into the courts. The result? A serious constitutional crisis, in which President Bush appoints the Rehnquist replacement who casts the vote that decides the election.

Couldn't happen? Consider the following:

Under the Constitution's so-called "Recess Appointments Clause" (Article II, Section 2), the president has the power to temporarily fill any official "vacancy" without approval of the Senate when Congress is not in session. Anyone so appointed sits in office until the Senate votes on their confirmation—or until the Senate's next session expires.

That special power has been construed by many presidents to extend to vacancies in the Supreme Court. The first recess appointment to the court occurred in 1795 when President Washington appointed John Rutledge chief justice while the Senate was in recess. Since then, 11 Supreme Court justices have been put on the bench in the same way—including Chief Justice Earl Warren, who was appointed by President Eisenhower in 1953.

If Rehnquist were out of commission, those precedents would give President George W. Bush a legal basis for appointing a replacement between now and January (when Congress is back in session). By itself, that's not so scary. But consider this ...

Election law professor Rick Hasen has identified at least five different "doomsday" scenarios, in which the Supreme Court could decide this razor-thin election. Imagine that one of those scenarios comes to fruition, and the election is thrown into the court—and Chief Justice Rehnquist is wholly incapacitated. With Rehnquist out of service, any ensuing election litigation could deadlock in a 4-4 tie at the Supreme Court. But now imagine if Rehnquist resigned: Bush would be free to make a recess appointment, of someone who would then be in the position to break any high court tie in the president's favor.

The resulting outcry would make the national disagreement over Bush v. Gore seem like a high-school Lincoln-Douglas debate.

It would also bring a difficult set of legal questions to a head. In the last year, Sen. Edward Kennedy has asked two federal appeals courts to rule recess appointments to federal courts unconstitutional. That's an argument the high court has never settled but would have to resolve if a recess appointee were asked to decide the election litigation.

One of Kennedy's arguments is that federal cases must be decided by judges with life tenure and protection against salary cuts. Because a recess appointee depends on the Senate for his continued job security, says Kennedy, he isn't truly independent. The bulk of the evidence weighs against Kennedy on this point: The historical practice is long and consistent. Indeed, all but six presidents have used recess appointments to fill vacancies on various federal courts. And the wording of the recess appointment clause plainly encompasses federal judges.

To be sure, Kennedy also claims the president made some recess appointments at the wrong time: i.e., during short breaks within a session of Congress, which he says shouldn't count as a "recess." That argument might have some merit, but it's not relevant to any appointments made between now and January, when it's indisputable that Congress is officially out of session.

The best argument against an election-saving Rehnquist replacement is one specific to the circumstances: Just as President Clinton couldn't use the power of executive privilege to interfere with a lawsuit against him in his private capacity, so President Bush can't use the recess appointment power to interfere with litigation that affects him in his private capacity as a candidate. That makes good sense. The Framers assumed that some mechanism for correcting abuse of the recess appointment power would be possible—for example, the Senate could still vote against confirmation when it returns from recess, thereby vetoing an appointment that's not in the public interest. But, if the president were to use the appointment to decide a case that secures his own party in the White House for a second term, there's no way to correct that abuse. Lawmakers could impeach Bush if they decided the tie-breaking appointment was an abuse of power, but they can't give the office to the losing candidate.

Despite those good arguments, the president would have a not insubstantial case to make in his favor. After all, the text of the recess appointment clause doesn't impose any condition on the power it grants—beyond the existence of a "recess" and a legitimate "vacancy." That means that if the scenario laid out above came to pass, the court would be forced to decide a hard but important constitutional matter in freakishly high-stakes circumstances.

Is this all a long, long, long shot? Of course. But even so, there's room for pause. As horror director Alfred Hitchcock well knew, the most disturbing stories are not always pure make-believe—they're the ones that just might happen if luck is against us. That's what makes the above scenario so unsettling—it's implausible but not impossible.

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Mark Moller is the editor in chief of the Cato Supreme Court Review. In 2000, he was part of the legal team that successfully litigated Bush v. Gore before the Supreme Court.
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