Advice and Consent and the Nomination of Judge Merrick Garland

One seat on the nine-member Supreme Court has been vacant since Justice Scalia died unexpectedly on February 13, 2016. To rectify this problem, will President Obama’s nomination of Judge Merrick Garland to the Supreme Court be headed for a vote, for withdrawal or for a recess appointment?

Both during and after the Republican and Democratic National Conventions, both parties’ candidates have pointed to the importance that the next president is likely to have in shaping the United States Supreme Court. Among the eight sitting members, three are past usual retirement age: Justice Ginsburg is 83 years old, Justice Kennedy is 80, and Justice Breyer is 77. So the next president — particularly if reelected to a second term — could potentially choose nominees for four of nine seats on the court.

It is not hyperbole to say that these appointments could have a very substantial effect on American justice for many decades. In the meantime, we are dealing with the problem posed by an eight-member Supreme Court, summarized by an Associated Press article as follows: “No one likes an even number on a court that makes decisions by majority vote.” The article points out that in the six months with only eight members, four cases before the court have concluded in tie votes.

In discussing the impact of the Supreme Court’s future on the current election, the article states:

Both Democrat Hillary Clinton and Republican Donald Trump have made the future of the Supreme Court part of their pitch to their respective party faithful. In talking about the court, Clinton has stressed her support for abortion rights, LGBT issues and immigration. Trump has released a list of 11 conservative state and federal judges whom he would consider nominating if elected.

How did we get here? Within days of Justice Scalia’s death, 11 Republican members of the Senate Judiciary Committee, the Senate body that makes the recommendation on judicial nominations from the president, announced that they would not report out an Obama nomination for Senate action. President Obama nonetheless sent to the Senate on March 16 his nomination to fill the Scalia vacancy: Judge Merrick Garland, who presently sits on the U.S. Court of Appeals for the District of Columbia Circuit.

Act 1: President Obama surely understood last March that whomever he might nominate to fill the seat of Justice Scalia would have a difficult time clearing the confirmation process in the U.S. Senate. Relations between the president and the Congress have been difficult. With Republicans holding a significant majority in the Senate, the prospect was not bright for the White House.

One strategy would have been to simply follow instinct: the president might have chosen a candidate of known liberal beliefs, pleasing his natural political base, and the nominee would have gone down in defeat. Or, the president might have chosen a legal conservative, filling the seat but achieving nothing for his goals, while infuriating his political base.

Classically for this administration, President Obama steered down the middle. Judge Merrick Garland, chief judge of the District of Columbia Circuit Court, is not on either the far left or far right. In The Philadelphia Inquirer, he has been described as “a moderate-to-liberal jurist with a pro-prosecution bent in criminal matters.”

The nomination of Judge Garland should please the progressive Jewish community in several respects. He is Jewish and perceives himself as a product of his heritage. He is as well educated, experienced and respected a candidate as anyone could ask for. He is considered a centrist politically, but on human rights issues — based on a very limited number of decisions — he is considered progressive.

Judge Garland is not a judicial activist. He is the product of Harvard Law School, and was trained at a time when that school was famed for populating law firms, not popular reform movements. Garland’s appointment by President Clinton to the Court of Appeals was confirmed by the Senate — then in Republican hands — without criticism of his qualifications. He has been on the Court of Appeals since then, where his decisions seem to fall well within precedent.

There is much additional to be said about his nomination.

Judge Garland holds the highest position in the federal judiciary, outside of the Supreme Court itself. The District of Columbia Circuit hears the most important cases, and most notably, cases that pit citizen against the government in matters of national scope. The chief judge of that Circuit is both the most powerful and the most challenged. His is the duty to administer not only the cases, but also the judges. Messy problems within the Circuit and even from across the country seem to gravitate toward Judge Garland. And he has handled them with great success.

Just prior to Judge Garland’s nomination, Tom Goldstein, publisher of SCOTUSblog, wrote:

Four core criteria will drive the [president’s] decision, in order of importance: objective qualifications; the appointment’s legacy; politics; and confirmability. The fact [is] that confirmability is the least important factor in this special circumstance — because Republicans control the Senate and they have made clear that no nominee is actually going to get confirmed — …

On objective qualifications, Goldstein put Garland at the head of the list of “possibles.”

The Supreme Court is — and for 20 years or more has been — divided along political as much as juridical lines. One might want a Democratic president to nominate a credentialed liberal to the court. But adding a respected centrist to the court can only be good medicine for that body.

Act 2: Upon receiving the president’s nomination, key Senate Republicans declared that there would be no nominating process. They would not meet or interview any candidate; the Judiciary Committee would not make any recommendation; and the Senate would not vote on the nominee. Filling the Scalia seat would wait for the next president to take office in 2017.

This is not what the Constitution prescribes, nor is it the traditional approach to confirmation.

The Constitution, Article II, Section 2, provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … judges of the Supreme Court … ”

This language would appear to leave no room for the Senate to shut the appointment process down, or try to decide which president shall exercise it. But the conservatives argue that there is a kind of “pocket veto” available. Michael Ramsey, writing in The Atlantic, says:

Even if the word ‘shall’ in the clause is read as mandatory, ‘shall’ refers only to things the president does. Instead, the Senate’s core role in appointments is as a check on the president, which it exercises by not giving consent — a choice it can make simply by not acting.

Of course, in the present case, only the majority party members of the Judiciary Committee are “advising” the president by not acting, which may not be what the Founding Fathers had in mind.

Elections have not prevented nominations from moving forward, at least in the past. The Inquirer describes, for example, how Tim Lewis, a former judge on the U.S. Court of Appeals for the Third Circuit, was confirmed during the presidential battle of 1992:

President George H. W. Bush had nominated Lewis in September 1992 and a short time later, after a 30-minute confirmation hearing, his nomination was voted out of committee. On Oct. 8 of that year, the Senate unanimously confirmed Lewis; Biden phoned him with the news from an Amtrak train as the senator was traveling home to Delaware from Washington.

And that was in the heat of an intensely fought reelection campaign by Bush, which he lost to Bill Clinton.

A few Republicans have relented from the original boycott of Judge Garland. Senator Toomey (R-Pa) announced in March 2016 that he would not consider the Garland nomination. But faced with a tough reelection battle himself, Toomey relented and met the judge for an interview. However, the meeting did not change his view that the confirmation process should not go forward.

Act 3: Looking forward, three scenarios for dealing with the nomination of Judge Garland are possible.

In the first scenario, the nomination remains in limbo until after the results of the election are in. At that point, the Garland nomination might be attractive to Republicans who are blocking it now. If the liberal presidential candidate sweeps in, and particularly if the present Republican majority in the Senate is swept out, the strategy of waiting for 2017 loses attraction. A nomination in 2017 might be likely to be a more liberal candidate than Judge Garland. Whether such a nomination could be filibustered will depend on the rules adopted by the new Senate. So after November 8, Judge Garland’s nomination — if it is still pending — might be confirmed or (less likely, in view of his clear qualifications) brought out and voted down.

If the Republican is elected president, Judge Garland’s nomination is surely not going to be brought to a vote, and even if brought out, is not likely to pass. Having held up the nomination for eight months, the Republicans would look silly if they were then to support Judge Garland.

A second scenario is that the president might try a recess appointment. Article II, Section 2 of the Constitution provides the president with the power to make appointments “to fill up all Vacancies …” if the Congress recesses without acting. If the Senate does nothing with Judge Garland’s nomination, the president can make the appointment without advice or consent when the Senate recesses. President Eisenhower made recess appointments of three justices who served long and creditable careers on the Supreme Court: Justices William Brennan and Potter Stewart and Chief Justice Earl Warren. However, recess appointments are not permanent: unless confirmed or rejected, they expire at the end of the next session of the Senate.

In recent years, the Senate has stymied the president’s use of recess appointments simply by declining to recess. Instead, the Senate declares an adjournment in which business may continue, although what business that may be is unknown.

Most recently, in 2014, in a case titled NLRB v. Canning, the Supreme Court held that Senate rules control the question as to whether the Senate is in session or in recess. Therefore, recess appointments by President Obama to the National Labor Relations Board were held invalid in that case.

This works for “intrasession” adjournments, but at the end of a Congress, there is reason to believe that a true recess occurs between the sessions of two different Congresses. The term of the present Congress ends on January 3, 2017, but if Congress follows practice, it will adjourn permanently before Christmas, and the next Congress will take office on January 3. President Obama remains in office until January 20, 2017.

When the present Congress ends and a new Congress has not yet convened, would a recess appointment succeed? It is hard to tell from the case law, but there is reason to believe that it might. Disallowing such a recess appointment would be tantamount to writing the Recess Appointments Clause out of the Constitution entirely: if there is never a recess during a Congress and never a recess at the end of a Congress, the Senate has simply cancelled that power of the president under the Constitution.

Would Judge Garland accept a recess appointment and vacate his very important life appointment to the District of Columbia Court of Appeals in order to step into a battle for a Supreme Court seat? It is hard to say.

The remaining alternative is that the nomination is withdrawn by the president or by the nominee. This could happen if Hillary Clinton prevails and the president or Judge Garland wish to allow her to have her choice of nominee. If the election goes the other way. it could happen to avoid having the present nominee voted down by the Republican Senate.

Stay tuned …



  1. says

    The press is talking about a recess appointment to the Supreme Court for Judge Merrick Garland, something President Obama could try when the present Congress shuts down. But it could be a very bad deal. If the Congress carries out the dodge it used before of pretending to stay in session, the recess appointment might be illegal. If Judge Garland were to accept a recess appointment, he loses his very important position as chief judge of the District of Columbia Circuit Court. And he takes the higher office subject to being voted out by the new Congress. His hope would lie in a Democratic filibuster, assuming the new Senate rules permit filibuster of Supreme Court nominees. And assuming the Democrats hang together in a very long filibuster!

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