But Senate Majority Whip John Cornyn (R-Texas) said Monday that he doesn’t expect the Senate to recess at all for the remainder of the year.
“I’d say it’s safe to say we’re going to do whatever it takes to make sure the president doesn’t issue any recess appointments,” Cornyn said.
That means that even when the Senate is not conducting legislative business, senators will have to gavel in to a short “pro forma” session simply to keep a session going. Previously, that has meant that one or two senators will go to the Senate floor every three days, strike the gavel to enter session and gavel out shortly after.
“I think [pro forma] is certainly part of it,” Cornyn said of the strategy.
With the Senate in recess when Scalia died, Senate Majority Leader Mitch McConnell (R-Ky.) told colleagues he did not expect Obama to attempt the maneuver in the few days between his death and the start of the Senate session following the President’s Day break.
Cornyn said GOP leaders haven’t worked out the details of how the pro forma sessions would be managed and which members would be in charge of banging the gavel — but they have a lot of practice in figuring it out. The Senate has frequently avoided recesses to prevent Obama from making appointments without its approval.
It’s an unsurprising decision to keep the Senate technically in session given McConnell’s hardline stance by to prevent the confirmation of a nominee to replace Scalia before the next president is installed in 2017. White House spokesman Josh Earnest told reporters last week that the White House stood by Obama’s original statement that he would “go through regular order and the regular processes” in nominating a Scalia successor.
There had been some speculation that Obama would use any gaps in the Senate schedule to fill Scalia’s job with a recess appointment. But a recent Supreme Court ruling makes that much more difficult, as the justices ruled that a previous recess appointment was invalid because a three-day pro-forma Senate session wasn’t long enough to be considered a recess.
Recess appointments to the Supreme Court were rare even before the 2014 ruling. Of the dozen justices appointed while the Senate was away nine occurred before the Civil War and all but one were eventually confirmed. The other three were made by Dwight D. Eisenhower.