THE NEXT JUSTICE – AT 11:26 A.M. ET:  The battle is already on.  Will Obama get to nominate a justice for the Supreme Court to replace Antonin Scalia, or will he defer to the next president?

He's pretty much given the answer.  He will nominate in due course.  Of course he will.  He would never defer.

Mitch McConnell, the Senate majority leader, says he will not permit a nomination to be taken up until after the next president is chosen.  Good.  I hope he sticks to it, but I fear that some weak Republicans may be peeled off, especially if they represent swing states and are up for re-election in November.

Also, there is now talk that Obama can make a recess appointment.  From the Washington Examiner: 

Senate Majority Leader Mitch McConnell has vowed not to confirm a successor to the late Supreme Court Justice Antonin Scalia, but some Republicans worry that President Obama could install a replacement anyway.

"We're in recess, so Obama can, in theory, appoint someone," a senior GOP aide told the Washington Examiner. "He could appoint [Vice President Joe] Biden tonight if he wanted to."

Obama wouldn't be the first president to use a recess appointment to place a justice on the high court. There are have been 12 justices appointed to the Supreme Court while the Senate was in recess. Dwight Eisenhower was the last president to use that power — he did so three times, according to Scotusblog.

And...

Obama used the recess power aggressively in the past. In January of 2012, he appointed three people to the National Labor Relations Board when the Senate was not officially in recess due to pro forma sessions. In 2014, the Supreme Court ruled 9-0 in NLRB v. Noel Canning that those appointments are unconstitutional because the Senate, by it's own rules, was not in session at the time the appointments were made.

But that's not the case now. The Senate is scheduled to be in recess until Feb. 22, giving Obama nine days to mull the idea. If Obama were to pursue that route, Republicans likely would argue that the Senate was out of session for too short a time for Obama to take advantage of the recess appointment power. But the Supreme Court has never said exactly how long a recess must be for the president to make recess appointments.

"It's a live threat," the aide said.

COMMENT:  McConnell should call the Senate back into session immediately, and the Senate should remain in session through the end of its term next January.  I would not put it past Obama to make a recess appointment tonight.

As I understand it, a recess appointment would only last until the Supreme Court goes out of session.  It would still have to be confirmed by the Senate to be permanent.

February 14,  2016