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Constitutional Hardball: Can Senate Democrats Confirm Merrick Garland on January 3rd?

December 25th, 2016, 11:25pm by Sam Wang

On the New York Times opinion page, the editors suggest (“The Stolen Supreme Court Seat,” December 24th) that President-elect Donald Trump could nominate President Obama’s choice, Judge Merrick Garland, as a gesture of goodwill. I myself suggested this on CNN last month (that was the point, you guys, not the bug – go watch). This is unlikely, to say the least…but there’s still a long-shot way to get a vote on Garland on January 3rd. It involves playing Constitutional hardball.

(sign petition) (contact your Senator)

Update: Good comment thread. One reader quotes a former Republican Senate staffer who says that the rules prevent this. I am somewhat skeptical of the source. But if objections are raised to this aggressive approach to overcoming the GOP blockade, they will surely take the form described. Other readers give counterarguments.

In 2004, the legal scholar Mark Tushnet published a classic article called “Constitutional Hardball.” This article is a must-read for anyone wanting to understand the battles over how our national government works. In it, Tushnet points out that from time to time, an organized effort is made to change fundamental principles of how the branches of the U.S. government operate. In Constitutional hardball, the parties carry out maneuvers that are within the literal rules, yet violate longstanding principles that are followed by mutual consent, a.k.a. “norms.” As examples, Tushnet cites (1) Marbury v. Madison, (2) FDR and the New Deal, and (3) a period that began in the late 1990s and continues today. This last period coincides with the advent of our modern, polarized politics.

The ninth-seat vacancy on the Supreme Court – and twenty-five other languishing judicial nominations – exemplify this year’s round of hardball. Usually, Supreme Court vacancies don’t arise in the last year of a Presidency, because sitting Justices avoid retiring in such a year. But nobody chose for Justice Scalia to pass on when he did. Senate Republicans declined to take up Merrick Garland’s confirmation to the Supreme Court, leaving the Court with only eight justices for much of the last year. They cited a tradition of not considering Supreme Court nominees in the last year of a Presidency, but that “tradition” arises from retirement practices, not a principle of Senate function.

Progressive strategist David Waldman points out that Senate Democrats have an option for escalating this game of hardball. Waldman is no stranger to this kind of thinking: in 2013, he pushed Senate Majority Leader Harry Reid to adopt the “nuclear option” for judicial nominations. This is now called the Reid Rule.

Waldman points out that at noon on January 3rd, 34 senators leave office. At that point, Democrats will have a 36-30 majority – which constitutes a quorum. And the Senate filibuster rule might not carry over from the previous Senate. Waldman suggests that at this moment, the presiding officer, Vice-President Joe Biden, could recognize the top-ranking Democrat, Senator Richard Durbin, who could then nominate Judge Garland for a vote. Waldman has started a petition requesting that they do this.

This idea faces multiple hurdles. For one thing, the Senate parliamentarian would have to agree that the filibuster rule did not carry over from the previous Congress. That would be in keeping with the “dead hand” principle that a Senate should not be bound by previous Senate bodies. It is not clear that a move to vote on Garland would clear such a hurdle.

A bigger hurdle is whether Democrats have the boldness to attempt such a move. To some extent, party members adopt their tone from their leaders. Senate Democrats might have to push back on President Obama, who has made it clear that he seeks to make an orderly transition to the Trump Administration. But the roughness of the Presidential transition may give him second thoughts. Democrats may be bolstered by the fact that Obama’s net approval is quite high, while Trump’s net approval rating is the lowest of any incoming President on record.

Tags: Politics · Senate

31 Comments so far ↓

  • Phoenix Woman

    It’s worth a try.

  • Tom Gavin

    Fun to speculate, but Garland probably wouldn’t go for it. But if he did, and the case went to the Supreme Court, he could take a page from the man he replaced and not recuse himself.

  • pechmerle

    A different, Constitution-based effort to force the Senate to vote on the Garland nomination has failed. A New Mexico attorney raised a challenge based on the 17th Amendment, the one that changed election of Senators from state legislatures to popular vote. The challenger argued that the Senate’s failure to act on the Garland nomination harmed him as a voter. C.J. Roberts denied his application for an emergency injunction against adverse lower court rulings, without comment. The lower courts said the challenger lacked standing, i.e. couldn’t show how the Senate’s refusal to act harmed him As A Voter. The story is here:

    Points for creativity, but —

  • Joseph Rice

    Any idea why Obama doesn’t at least make recess aopointments, including Garland, in the very brief time between Congresses? He could secretly have all the paperwork completed and then announce them very quickly. Yes they will only serve a year, I think, but also an option.

    • Jim

      A recent SCOTUS decision (2014?) held that a Senate recess must last at least 3 days for a recess appointment to be made, notwithstanding the precedent that previous Presidents have made multiple recess appointments during the few seconds between the gaveling out of a old Senate and the gaveling in of a new one.

    • pechmerle

      Yes, the Supreme Court in 2014 held, among other things, that the Senate – which in practice means the majority leader i.e. McConnell currently – has the power to decide when it is and is not in recess. Thus, by keeping some minor activity on a bill or two going, and with only a few helpful Senators in attendance, the Senate can avoid a three-day period that would trigger the recess appointment power.

      I don’t anyway believe that Garland (or anybody with substantial judicial background) would agree to take up such an appointment in the current – poisonous – climate, nor that Obama would entertain taking that path. Note that Garland — recognizing that nothing will happen now until Trump announces a nominee — has gone back to his regular duties at the D.C. Circuit Court of Appeals. More on the technicalities here: includig a summary of the S. Ct. opinion mentioned by Jim. Denniston’s comments at ScotusBlog preceded Trump’s election and so didn’t contemplate the even more poisonous atmosphere that prevails now around the Supreme Court vacancy.

    • Sam Wang

      Doesn’t a recess appointment create the problem that Garland then loses his appointment at the D.C. Circuit Court of Appeals? To him, wouldn’t it be that the only good SCOTUS appointment is a permanent one?

  • Stuart Levine

    This points up something that I’ve come to believe: That the Democratic Party is, in fact, the conservative (with a small “c”) party. That is, the Democratic Party does not, willy-nilly, jettison norms of practice and observes formalities.

    On the other hand, the GOP has become a radical reactionary party, essentially ceding the government to the billionaire class, infecting the intellectual world with ideological “think tanks,” using rhetoric that was previously outside of the pale of normal political discourse, etc.

    No, the Democratic Party, when in control of the Senate for a brief moment, will not approve the nomination of Judge Garland. That would be a violation of political norms. However, the Trump nominee, whomever that may be, will, when on the SCOTUS bench, regularly violate traditional norms of judicial conduct and constitutional interpretation. He or she will trample long established legal interpretations in order to reach ideological goals.

  • Mark W

    I’m 53 years old and typically consider myself respectful of traditions in government – it’s how we maintain order and civility in our Republic.

    But this current generation of Republicans has so thoroughly and consistently thrown tradition, collegiality, cooperation and fair play out the window that I really hope the Democrats go for this. What the GOP did after Scalia passed was absolutely unprecedented. Democrats need to respond in kind. If they don’t, the GOP will just keep pushing limits and boundaries like the unchecked 5-year-old that party has degenerated into. Where does it end? If you keep rolling over for them they will install Trump as dictator, making up some mealy-mouthed justification for it like “letting the voters decide” on a Supreme Court opening when the voters already DID decide in the most recent presidential election.

  • Bulgakov's Cat

    Doubt this will pass the civility filter, but here goes.
    Game Theory 101:
    In the Sinner v Saint version of TFT (tit-for-tat) the Sinner wins forever.
    If dems insist on being saints, they can never win.

  • Marc

    If the Democrats use this strategy to confirm Garland, how long do you think it would take the Republicans to increase the size of the Court to eleven and appoint two new justices? Before the election, Ted Cruz suggested letting the Court shrink by natural attrition. Making it grow is not so different.

  • Jay Maynard

    Sean Davis over at The Federalist claims that this is not possible. He is a Republican partisan and is therefore motivated…but he is also a former member of Senate staff. Davis claims that the terms of office of the incoming Senators begin the instant the terms of their predecessors end, and the presentation of credentials of new Senators takes precedence over all other Senate business except a motion to adjourn. Further, a nomination cannot be voted on the same day as it is proposed. Suspending all of these rules requires a two-thirds vote.

    Davis’s claims appear not to take into account Waldman’s assertion that only standard parliamentary procedure will apply.

    • Jim

      The new terms cannot begin until the Senate has determined who the new senators are. If multiple candidates present themselves, the Senate (as the sole arbiter of such things) must decide which candidate to seat. There is no rule that says that decision could not take days or weeks or months or years. Franken was not seated until about six months after that Senate term began.
      Also, at the start of a new Senate there are no rules except those spelled out in the Constitution, so the nomination could be confirmed 2 seconds after it was made, by a bare majority.

      Not saying they *should* go that far, but the rules of the game allow it.

  • Avattoir

    It’s not just that, as you acknowledge, you have no legal foundation to support your assertion; it’s also that there’s no support for it in the article to which you link. What you’ve posted is a non sequitur.

    Sam’s article notes the main, IMO only legal hurdle: that the move depends on a favorable ruling by the Senate parliamentarian. Even that isn’t a strictly ‘legal’ obstacle: it’s more like quasi-legal. There is abundance historical precedent for the Senate of any given day voting on a set of rules or even a single rule that applies only to that session.

    A Senate Parliamentarian could choose to rule otherwise, but to do that at all ‘honestly, the SP would have to invent a principle that currently doesn’t exist – such as, for example something based on oblique motive aimed at perverting the will of the voting public, analogous to what the North Caroline state legislature has done recently with its bill limiting the powers of the incoming governor, or further perverting the equal rights amendment to Constitution beyond even what the Republican SCOTUS majority achieved in Bush vs. Gore.

    I tend to doubt that the near-ephemeral Senate majority necessary to this scenario would even attempt this, especially given the D majority would be led by the far more accommodationist Sen. Schumer, rather than the more quixotic Sen. Reid. I tend also to doubt that any Senate Parliamentarian politically acceptable enough to fill that role during a period of Republican majority, such as now, would be inclined to rule against the publicly-stated positions and record of the leadership that will have controlled the Senate on either side of this mayfly of a Senate that allows for even envisioning this ‘hardball’ move. But those doubts concern politics, not law.

  • LondonYoung

    A commenter on DailyKos put it this way:

    “But at some point Garland will need to walk into the Supreme Court building and try to enter his office or seat himself with the Justices who are hearing a case. And at that point men with guns will either escort him in, with Roberts et al sitting by impotently, or tell him to get out or be arrested for trespassing.

    Now, ask yourself some simple questions:

    Who will the men with guns report to?
    Court security personnel report to Chief Justice Roberts
    Other federal military and security forces will be reporting to Trump as of Jan 20
    DC police will report to the Democratic mayor of DC
    Is it likely that the men with guns will refuse to obey orders of the people they theoretically report to?
    Court security personnel will almost certainly be loyal to the institution and will follow Justice Roberts’s orders unless they are insane or they are faced with superior force, which seems unlikely
    Federal military and security forces will stay loyal to their institutions and will follow the orders of the president unless clearly unconstitutional or insane.
    DC police might try to escort Garland in, but they will not follow orders to get into an armed stand off with SCOTUS security on federal territory in a federal building, and if they do they will be quickly turfed out by various armed federal forces.

    So, at the end of the day, the Republicans win.

    The real question is how much damage do you want to do to our rule based system of resolving issues and to what extent do you want to replace it with men with guns?

    • LondonYoung

      I will add the following quote from the Wikipedia describing another constitutional conflict, Brown v. Board, and could the Feds apply it in cases involving only one state.

      “In 1957, Arkansas Governor Orval Faubus called out his state’s National Guard to block black students’ entry to Little Rock Central High School. President Dwight Eisenhower responded by deploying elements of the 101st Airborne Division from Fort Campbell, Kentucky”

  • TheTragicallyFlip

    No internal senate rule can stop this. Whatever the parliamentarian rules, the Chair (Biden) can overrule it. That ruling will be challenged from the floor by a Republican most likely, but as long as a majority of Senators (at this point, Democrats) votes to sustain the Chair’s ruling, it stands.

    Senate rules are always what a majority of Senators, supported by the Chair say they are. No internal Senate supermajority provision can survive this. Only supermajority requirements baked into the constitution can survive this.

    The people talking about Roberts ordering SCOTUS security to block Garland entering are probably more on point. Or Trump making SCOTUS 11 members, but he might do that anyway if he ever loses a ruling.

    • TheTragicallyFlip

      Would also point out that if Garland doesn’t want to be seated this way, I don’t see why this tactic would have to be done with Garland. Obama can withdraw his nomination and replace it with a new one.

  • Carole

    If seating Garland, concerns about losing his current post and/or not being given the position in a normal manner are a problem, couldn’t Obama & Biden have a “secret” nominee there, possibly even a retiring Senator or rep? If Repubs could make it an 11 member SCOTUS, couldn’t Democrats do that at the same time? Is there a limit in # of justices? And if even 1 Obama justuce is confirmed on 1/3, wouldn’t a law that adds additional justices be subject to review by SCOTUS, where Progressives would have a majority with the new Obama nominee? I’m saying it’s time to get EXTREMELY tough. We have a dictator PE and total GOP takeover as of 1/20 – Russia, Obamacare, Medicare, Social Secuirty, Education, Paris Agreement, Iran agreement, civil liberties, voting rights, women’s health, immigration, intl trade, UN, Mideast peace & even nuclear disarmament & nuclear war are already on the line!

  • TPaul

    I’m truly stumped. I would never have agreed with this tactic, but now I’m watching what the Republicans are doing in N. Carolina, and have no doubt that if the shoe were on the other foot, Republicans would do this.

  • Arbitrary

    I am no lawyer, but couldn’t 16 of the remaining Republican senators just not show up until after the new senators are sworn in, thus guaranteeing that the senate didn’t have a quorum for any voting between the old members leaving and the new members being seated?

    • Sam Wang

      Oh, good one…though I wonder if the chair could fail to recognize such an objection.

      Or, another countermove: recess?

    • Marc

      In that case, could the Democrats do a quorum call and delay until there is a quorum?

    • Arbitrary

      If the Democrats delay they lose come inauguration day, when Biden ceases to be Vice President.

      Although if they declare a recess they might be able to sneak Garland (or whoever they want) on as a recess appointment.

      I’m not sure if the chair failing to recognize the objection matters here; the quorum requirement for ‘doing business’ is written into the Constitution (under article I section V), though it isn’t clear if the majority necessary would decrease to 34 senators under the legal theory that there would only be 66 senators until the new class were sworn in.

  • LondonYoung

    FYI, over in the House, the current congress held six roll call votes (including the constitutionally mandated election of a speaker) prior to the swearing in of the members. So at least the House doesn’t think you have to be sworn in for your vote to count – just for the clock to strike noon.

  • Neil Sinhababu

    Does the 20th Amendment make this strategy invalid? It seems to set things up so that the new Senators take office instantly as the old Senators leave. So all 100 Senators would be eligible to vote, and Republicans would win the vote.

    “1: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”

    • LondonYoung

      hmmm: “shall then begin.” Does that mean “shall immediately begin”? Who is to say?

      In a nutshell: the constitution says “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Member”, so Biden (as president of the Senate) and the 36 continuing democrats would assert that the incoming class of 34 are not Senators until sworn in. The 52 republicans would all say they are. Biden would announce that the Senate has confirmed Garland. Mitch McConnell would assert that the Senate has not confirmed Garland. Who is to say which of them is right?

      Men with guns.

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