President Obama could try to sneak Merrick Garland onto the Supreme Court on Tuesday in a high stakes legal gamble that many say isn't worth the fight, The Washington Times reports.
There will be a 5-minute window open just before noon when the Senate gavels the 114th Congress out of session and the time the 115 Congress begins, according to the Times. During those 5 minutes, Obama could test his presidential authority and put his Garland, his nominee, on the high court.
The Times notes it would be a legal gamble since the Supreme Court overturned some of Obama's 2012 recess appointments, saying the Senate was actually in session and the president could not use his recess powers.
But the court ruled there was a difference between appointments made during an annual yearlong session of Congress, known as "intrasession," and picks made at the end of the year known as "intersession."
Even as some activists are urging Obama to go through with it, experts warn it is not worth the risk.
William G. Ross, a law professor at Samford University, confirmed Obama has the power to try to force Garland onto the high court. But he said it would be "politically unwise and damaging to the prestige of the court."
"It would exacerbate acute political tensions that have roiled the transition process and promise turbulence from the very start of the Trump administration, and it would contribute to the growing public perception that the court is unduly political," Ross told the Times.
But even if Obama does successfully put Garland on the bench, the appointment would expire no later than the end of 2017, the newspaper reports.
In the meantime, Garland would end up losing his seat on the U.S. Court of Appeals for the D.C. Circuit.
Obama would be trading a lifetime of Judge Garland for less than a year of Justice Garland, the Times says.
And The Washington Post notes any attempt to force Garland on the court is "unlikely."
The newspaper questioned whether such a move was legal and also noted the political risks involved.