Barack Obama, Merrick Garland

Federal appeals court judge Merrick Garland stands with President Barack Obama as he is introduced as Obama's nominee for the Supreme Court at the White House in March of 2016. Senate Republicans have refused to hold confirmation hearings on Garland, leading some to suggest that Obama should put him on the court via a recess appointment.

(AP Photo/Pablo Martinez Monsivais)

COLUMBUS, Ohio -- Some liberal commentators, frustrated by Senate Republicans' months-long refusal to hold confirmation hearings on Merrick Garland, President Obama's Supreme Court nominee, are airing a potential solution: have Obama put Garland on the court via a recess appointment.

The idea, which is plausible but unlikely to happen, centers on the president's constitutional power to temporarily appoint people to top federal offices without needing Senate approval during periods when lawmakers are on break.

The thinking (or, perhaps, the hope) is that Obama would appoint Garland on Jan. 3, between when the 114th Congress departs and the 115th Congress takes over. Under this theory, Garland would then be able to serve until the new Congress' session ends in December 2017 - giving the court a center-left majority for about a year until Donald Trump nominates a new, permanent conservative replacement.

Can Obama do this? And if he can, what would happen?

Has this tactic been done before?

The short answer: sort of, but not in this exact way.

President Eisenhower appointed two Supreme Court justices via recess appointments: Earl Warren in 1953 and William Brennan in 1956. Both were later confirmed by the Senate.

The scheme to put Garland on the court, though, differs a bit, because it involves appointing him during the extremely short time span - only a few seconds -- on Jan. 3 between when the current Congress leaves and the new Congress is gaveled in. This "inter-session" strategy has been used only once: in 1903, when Theodore Roosevelt issued more than 160 recess appointments (none to the Supreme Court) in the moment between when one congressional session ended and another immediately began.

So what's the problem with Obama doing this?

The first would be that appointing Garland in this way would create a political firestorm of unusual intensity even for today's era of hyper-partisanship. It would be a historic precedent that would challenge the traditional balance of power among all three branches of government.

It's also unclear whether Obama could legally do it. In 2014, the Supreme Court ruled in National Labor Relations Board v. Noel Canning that congressional recesses lasting less than 10 days are "presumptively" too short for the president to make recess appointments.

Supporters of a Garland recess appointment note (correctly) that the Canning decision technically only applied to recesses during a congressional session, not "inter-session" recesses. But it indicates the court wouldn't look favorably on Obama appointing Garland during the few seconds between gavels on Jan. 3.

What could Republicans do if Garland is appointed?

Probably the quickest and most effective response would be for the Republican-controlled Senate to adjourn sine die early, which would end Garland's term. Such a move requires the approval of the president (as well as the House, though Republicans hold a solid majority there), so Senate Republicans might have to wait until Trump becomes president on Jan. 20. But it would mean that even if Garland was appointed, he might spend as little as three weeks on the Supreme Court.

Republicans could also challenge Obama's recess appointment in court. But a legal challenge could take months to resolve and be hard to win (judges may be reluctant to wade into such a political thicket, and it's unclear who would have standing to sue and who the case would be filed against once Obama leaves office).

Why would Obama want to make a recess appointment?

The most obvious answer is that having Garland take over for the late Antonin Scalia would tilt the Supreme Court to the left, at least for a while. While the court has been selective about which cases it accepts until Scalia's permanent successor is in place, its docket for the first half of 2017 includes cases about the right of transgender students to use the bathroom of their choice and whether religious schools can be denied equal access to government benefits.

Another potential benefit for Democrats: the inevitable fight over a Garland recess appointment would divert Republicans' attention away from their lengthy to-do list under President Trump, including repealing Obamacare and naming a permanent, more conservative justice to the court.

"It might be a way of throwing the new majority off its game," said Ohio State University law professor Peter Shane.

What are the chances of this actually happening?

Analysts and even proponents of a Garland recess appointment admit it's unlikely that Obama will resort to such a blatant end-run around Congress. Such a move, Shane said, would be out of character both for Obama, an institutionalist, and for Garland, whose "approach to judging shows sort of a general faith in the regular institutional order."

A secondary reason for Obama to hold off: if he appoints Garland to the Supreme Court, Trump would get to appoint his successor on the U.S. Court of Appeals for the D.C. Circuit.