Can Senate Democrats Confirm Merrick Garland on January 3rd?

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.

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