David Bernstein:
As co-blogger Jonathan H. Adler has pointed out, the Senate’s power to advise and consent on judicial nominees does not give the Senate any obligation to exercise that power in any given way. The constitutional text, therefore, does not require the Senate to either hold hearings on Merrick Garland, nor to have a vote on his nomination.
On the other hand, our constitutional system is not based solely on the constitutional text, but on norms of behavior that have developed over time. And while mandatory hearings and eventual votes on Supreme Court nominees weren’t always part of our constitutional culture, they have become so in recent decades. So Democrats would seem to have a strong argument when they suggest, based on constitutional norms (but not based on constitutional text), that the Senate has an obligation to formally consider Garland’s nomination, rather than refuse to consider it because it’s an election year and would shift the balance on the court.
The problem with that narrative, however, is twofold. First, as Adler has repeatedly documented, norms surrounding presidential appointments, especially judicial appointments, have increasingly been stressed and undermined in recent years by both parties. It’s not clear, if I were a Republican senator, why I’d use this particular opportunity to call for a cease-fire, especially one that the other side may not honor in the future.
Second, as I describe in “Lawless,” the Obama administration, with its aggressive assertions of executive power, is in a poor position to appeal to constitutional norms. The administration showed a severe lack of respect for constitutional norms when, for example, contrary to decades of precedent that the Justice Department will defend any federal law with a plausible defense, it refused to defend the Defense of Marriage Act; when the administration forced Common Core standards on local education without anything resembling explicit congressional approval or even debate, based on an aggressive reading of vague existing law; when the administration unilaterally changed immigration policy via executive order, after Congress failed to pass legislation that would have accomplished similar ends; when the president has simply refused to enforce provisions of Obamacare that proved politically problematic; and, for that matter, when the president advocated for and signed perhaps the only major piece of American social legislation (Obamacare) that not only failed to win widespread bipartisan support, but also attracted not a single vote in either house of Congress from the other party.
If the GOP caves on this and even let’s Gsrland come to a vote, much less be confirmed, they will lose control of both houses of Congress, and be destroyed as a party.
And all this “pressure” the left plans on putting out against republicans for not considering this guy is easy to answer with ads showing Biden, Schumer, Reid, et al on video stating that SCOTUS vacancies should NOT be filled in an election year.
If the GOP is too damned namby-pampy to start gut fighting against the leftist scumbags, then to hell with the GOP.
President Obama nominates Merrick Garland to the Supreme Court
Why? Garland seems well qualified and is also considered to be a moderate. Does McConnell prefer that Hillary Clinton nominate a left-leaning jurist for consideration by a Senate that the GOP may no longer control?
Obama has a Constitutional obligation to nominate. The Senate has a Constitutional obligation to consider his choice, and to approve the nominee or turn him down. It’s this sort of pig-headed, nonsensical obstructionism that’s likely to lose republicans control of Congress.
If they don’t like Obama’s nominee, they should do their job by holding a vote and turning him down. If there’s no basis for turning him down, they’re simply not doing their job.
@Greg: Sounds like the Senate may Bork him! Was that a GOP action? Hypocrites!
@Randy, #3:
Bork was not an ideological moderate. He also carried political baggage from the Nixon/Watergate era, and held that there was no Constitutional basis for protecting an individual’s right to privacy. In spite of strong democratic opposition to his confirmation, his nomination was debated and a confirmation vote was actually held. His confirmation was rejected by 58 senators, including a number of republicans.
@Greg:
Bork was not the racist extremist the left portrayed him as. And your four republicans who voted with the entire 54 democrat senators were:
Lowell Weicker CT, extremely liberal and only nominally republican. Cited as having the worst attendance record in the Senate during his service, and was rated 20 points higher than his contrmporary democrat CT senator Dodd by the extreme left Americans for Democratic Action.
Arlen Spector PA, another extremely liberal RINO who jumped to the democrat party before losing his seat.
Bob Packwood OR, another RINO, who famously resigned in disgrace because of his sexual harassment behaviors.
John Chafee RI, another extremely liberal RINO, who was primarily known for pushing leftist environmental issues, opposition to the ban on homosexuals serving in the military, and outspokenly pro-abortion.
The main thrust of the opposition to Bork was the fact that he was a brilliant legal mind of the strict constructionist interpretation of the Constitution who disagreed with the outrageous characterization of “right to privacy” as justification for Roe v Wade legalizing abortion at the federal level.
And as I stated in my original post, there is no honest characterization of Obama’s nominee as a ‘moderate’, no matter how much he, the dems, and the extreme leftist media try to portray him a one. His position on the DC court of appeals regarding the Heller decision alone reveal him to be a leftist, posing as the so-called ‘moderate’ the dems want us to believe.
IF McConnell et al in the GOP Senate do not prevent this nominee from getting on SCOTUS, the republican party will lose congress, and die as a national party.
So, there’s a fundamental right to privacy if the FBI wants to look at the contents of a couple of dead terrorists’ cell phone, but no right to privacy when it comes to a decision that should be a personal matter between a woman and her chosen medical practitioner?
McConnell is evidently afraid that if Garland’s nomination were put to a vote, he’d be confirmed. He very well might be. Few people are arguing that he isn’t qualified. The problem is that he’s not biased.
@Greg:
Laughable. Even liberal legal minds have stated that Roe is bad law, and the idea that pro-aborts only consideration regarding abortion is the “right to privacy” between a woman and her abortionist is totally destroyed by the pro-abortion demand for abortion to be covered by taxpayers; by the hypocritical double standard that says the father of the baby has no legal right to prevent the abortion, while the father is legally liable to financially support the baby solely based on the woman’s decision to give birth; and the outrageous efforts of the left to try to force religious hospitals to perform abortions – as well as the push by pro-aborts to force pro-life obstetricians to participate in abortions in violation of their first amendment right to free expression of religious belief -which actually exists in the Bill of Rights, unlike the “penumbra” the Warren court made up to justify abortion.
Comparing the misguided right of terrorists to keep their cell phone activity private – which I agree is ridiculous (the caveat concern being the mistrust of the federal government only exercising such access limited to terrorists’ cell phones rather than everyone else’s) to denying the right to life of individuals the fetal stage of human development is a very twisted red herring.
The leftist hypocrisy on this SCOTUS nomination is blatant, as shown by the comments of Biden, Schumer and even Obama when a republican was president in an election year and a SCOTUS vacancy existed. The advantage you leftists have is that the dems don’t cave as they continue their push for “progressive” totalitarianism, while we are stuck with marshmallow-spined GOP RINOs who took lessons from the Vichy French on capitulation.
@Greg:
They sold Ginsburg as a moderate when she was nominated too. Another judge who will build consensus we were told. She’s been neither.
@Pete: There is another way to handle this. When you think about it, there are only around 8 months left to confirm someone because Congress goes into recess in December and by the time they come back, Obama only has a few weeks left. The average time it takes for the process is 67 days. That gives Obama time for three choices. First, let the Dems squirm and wallow in their hypocrisy for awhile. Let them publicly eat their past statements. Next, take up Garland. His views on the Second Amendment alone indicates that he either lacks a basic understanding of the Constitution and the Federalist Papers or that he doesn’t care about them. Vote him down. Obama claims that Garland is the closest he can come up with to Scalia (a bald faced lie that only his sheep would believe). That means his other two choices will be to the left of Garland. Vote them down too. Add in summer recess and the time between the nominees and we are at December. When the whining starts followed by the inevitable charges of racism, tell the voters that if they don’t want more laws like Obamacare on the books, it would be wise not approve of any of Obama’s nominees.
@another vet:
I would wholeheartedly support your proposed strategy if we weren’t talking about RINOs demonstrating dedication to constitutional principles via having the backbone to reject Garland in a vote. Given the “bend-over-drop-trou-while-asking-Sir-may-I-have-another” behavior we have seen time and again from alleged conservatives like Hatch and Graham, I have grave concerns about the success of your strategy.
@Pete:
It would definitely take some backbone, the type that isn’t present (one of the reasons for Trump’s and Cruz’s success) which is why I believe there will eventually be hearings on the nominee(s). Once that happens, they will need to vote them down, hence the alternative and even that may not work because of the lack of backbone as you point out. In reality all we have right now is the Executive Branch.
Much ado about nothing–BHO knows the nom dies–just trying to make GOP look small.
The reason Garlands voice was cracking during his “Thanks for nuthin pal” speech is he knew he didn’t have a snowballs chance.