Diary

Dealing with the Garland Nomination

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Obama’s nomination of Merrick Garland to succeed Antonin Scalia on the Supreme Court was an interesting pick and he is certainly acting within his assigned constitutional duties in making the nomination.  Likewise, the Senate is clearly within their constitutional rights and duties not to act on the nomination, or to deal with it as they see fit.  The administration and Harry Reid in the Senate is characterizing the whole scenario as a Republican temper tantrum resulting in the Senate “not doing its job.”  By “not doing their job,” they are, ironically, doing their job in this case.

There is absolutely nothing in the Constitution that says the Senate must take up the nomination.  In fact, Obama’s whole argument is that they are not violating the Constitution, but violating Constitutional norms.  This is pure poppycock from a president who regularly violates constitutional norms.  For example, effectively granting amnesty to 4 million illegal immigrants violates constitutional norms.  And we can certainly add to the list of Obama’s transgressions in this area.  When he does not get what he wants, he simply does what he wants through executive actions.  So, it is a little hypocritical for him and his lackey, Harry Reid, to suggest otherwise.

That being said, the complicating factor is the impending presidential election.  It is no coincidence that Obama picked an alleged “moderate” who happens to be 63 years old when there are younger picks who could have made a longer-lasting impact on the Court.  This was clearly a political calculation cloaked in the rhetoric of not politicizing the Supreme Court.

But, let’s dispense with this “politicization” nonsense.  Since our founding, Supreme Court nominations have been political appointees.  All one needs to to is read Hamilton’s Federalist Papers to realize this.  It has simply grown in importance since the Warren Court in the 1960s.  Further, it was dolts like Ted Kennedy, Joe Biden and Patrick Leahy- all Democrats- who upped the ante and invented a new phrase- “Borking” a nominee.

The GOP leadership in the Senate seems to be sticking to its plan not to entertain the nomination in this, an election year.  Given the stakes, that is a wise decision.  However, the possible possible nomination of Donald Trump as the GOP’s presidential choice has many people rightfully worried.  This has to figure into any strategy regarding this particular nominee.

Let’s start with the supposition that Obama is sending Garland up as a sacrificial lamb.  This is basically a dare to the GOP leadership to stick to their guns.  And they should, albeit in a stealth fashion.  Start by going through the motions of targeted interviews with Republican and Democratic Senators, but drag the process out.  The strategy is to delay and delay again.

This is a nominee with 18 years experience on the DC Court of Appeals.  This is a nominee with a long paper trail unlike many previous nominees.  It could take potentially months (wink, wink) to go through every decision he ever authored or joined.  That is not even counting his dissents.  That is not even counting his decisions in accepting cases.  God knows how many decisions came before the DC Circuit in the past 18 years.

This entire vetting process could potentially take us into June, or later.  The last GOP primary is on June 7th.  At that time, we should know whether Donald Trump has enough delegates to be the nominee.  If it is headed to an open convention where someone other than Donald Trump could potentially be the nominee, then the Senate should pro forma recess.  This will prevent Obama from nominating Garland as a recess appointment and further delay the process.

The convention is scheduled for mid-July.  Ooops!  The Senate has to vet the nominee some more before any potential hearing is called.  If Donald Trump is the eventual nominee, then we enter Phase II.  The consensus is that Trump would likely lose to Hillary Clinton in the general election.  However, anything could happen between the GOP convention and Election Day that could change that calculus.  But assuming Trump is the nominee, then Merrick Garland may actually be the best bet for the Republican Party for the Supreme Court.

If Clinton wins- and we have to go on that assumption- there is no way in hell she will appoint Garland to the Supreme Court.  She will likely go with a younger, clearly more liberal nominee.  Considering that a Trump candidacy may drag down ballot Republican Senate seats out of office, it would then be best to essentially fast track the Garland nomination through a hearing and floor vote.  In this way, the Senate appears to be doing its job.  In fact, it is doing it real well.  In this scenario, Garland is approved and gets his seat on the Court in time for the next term.

Regardless, given the squishiness of Trump, even if he did win the Presidency there is no telling who or what he would appoint to the Supreme Court.  In this manner, should Trump win, he is denied an appointment to the Supreme Court.  And so would Clinton be denied that opportunity right off the bat.  It is a calculated roll of the dice, but at this point we should take our chances with Merrick Garland rather than a Trump or Clinton nomination.  In only two instances should the door to the Supreme Court be categorically shut to Garland- if Cruz is the Republican nominee, or if by mid-October it appears Cruz would lose the election to Clinton.  In this scenario, Garland gets his seat early in the next Supreme Court term.

{Note: Even if Clinton wins and the nomination is not withdrawn, the lame duck Senate can confirm and commission Garland.  That would put the outgoing Reid in the strange position of filibustering an Obama nominee to the Court.}