Though President Barack Obama's nomination of Merrick Garland to the Supreme Court was stalled by Republicans months ago, and President-elect Donald Trump's win all but ensures that he will appoint a conservative majority to the nation's highest court, Obama still has one shot at putting Garland on the bench for up to one year, by appointing his nominee in between two sessions of Congress on Jan. 3, 2017.
According to New Republic, the president is able to appoint a Supreme Court nominee during "inter-session" Congressional recesses -- the break between two years of Congress, or the break between outgoing and incoming Congresses -- or other recesses in which Congress does not hold "pro forma" sessions every three days, as determined by a Supreme Court interpretation of the Constitution.
The Constitution's Article II, Section 2 states that "the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate," which the Supreme Court limited in 2014 to mean Senate breaks that last longer than ten days without pro forma sessions as well as inter-session recesses.
If Obama were to make this move, GOP legislators would no doubt oppose it at all costs, but they have acknowledged the legitimacy of inter-session recess appointments in the past, when Republican Rep. Chris Collins of New York -- who is now on Trump's transition team -- introduced legislation to pass a constitutional amendment to end the them.
"It's been 111 days since President Obama nominated Merrick Garland for the bench and, while the Senate has continued to hold their ground on proceeding, we need to ensure the president cannot fill this slot—in the form of a recess appointment," he said in the filing, according to New Republic.
GOP senators ruffled Democratic feathers when they announced that they would block any justices appointed by Obama for nearly a year until the new president is inaugurated in January 2017.
"I'm sure that President [Donald] Trump will nominate a person of integrity, character and qualification," said Obama's former Solicitor General Donald B. Verrilli Jr., who called the move "a major step in the wrong direction," according to CNN. "But I just think it's going to be impossible for Democrats in the Senate to think anything other than this was a seat that was stolen from them for partisan reasons by the shredding of the norms that ought to govern the Supreme Court confirmation process."