Gimmicks on Garland SCOTUS Nomination Unlikely

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By Kimberly Strawbridge Robinson

April 13 — Theories abound on how Democrats could force through President Barack Obama's U.S. Supreme Court nominee Chief Judge Merrick Garland in the face of steadfast refusal by Senate Republicans to hold confirmation hearings.

From Senate procedural mechanisms to creative constitutional interpretations, the theories run the gamut as Garland's nomination creeps into its second month.

But it's “unlikely the Obama administration will try to win confirmation for Judge Garland through any sort of trickery or innovative theories” of constitutional interpretation, UCLA School of Law professor Adam Winkler, Los Angeles, told Bloomberg BNA April 11.

There's little downside to the administration waiting a few weeks or even months for the Senate itself to get the confirmation process started, George Mason University School of Law professor Ilya Somin told Bloomberg BNA April 11.

And the consequences of pushing the U.S. Court of Appeals for the District of Columbia chief judge through now are potentially significant—namely, calling into question the legitimacy of the court itself, Somin, whose research focuses on constitutional law and popular political participation, said.

Bypassing the Committee, Senate

The average time from nomination to confirmation of a Supreme Court justice is 67 days, Obama Senior Advisor Brian Deese said at an April 1 Politico event. The longest in modern history is 125 days for Justice Louis Brandeis, he said.

But with Senate Republicans vowing to hold off on confirmation hearings until the next president comes into office, Garland's March 16 nomination could shatter that timetable.

As a result, several theories have popped up, suggesting how the administration could bypass the Senate Judiciary Committee—and perhaps even the entire Senate.

Procedural Mechanisms

The most obvious way to do that would be a recess appointment, Somin said.

But the Supreme Court itself seems to have taken that option off the table, he said.

In 2014, the court unanimously held that the Senate is in session whenever it says it's in session, in NLRB v. Noel Canning, 82 U.S.L.W. 4599, 2014 BL 177533 (U.S. 2014) (83 U.S.L.W. 13, 7/1/14), Somin explained.

It's unlikely the Senate would go into recess to allow Obama to make a recess appointment, he said.

Another procedural workaround some have suggested is a motion to discharge, which would bypass the Judiciary Committee and bring a vote to the Senate floor.

But some Democrats have said that would be difficult because they would ultimately have to get 60 votes to invoke cloture on the matter (84 U.S.L.W. 1482, 4/7/16). Democrats currently hold 46 seats.

Waiving Advice & Consent

One commentator said Obama can just appoint Garland to the bench and bypass the Senate altogether if the Senate fails to act.

“It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent,” attorney Gregory L. Diskant, Patterson Belknap Webb & Tyler, LLP, New York, said in an April 8 op-ed.

“This argument is wrong for multiple reasons,” Somin wrote on April 11.

First, it's probably unconstitutional, Somin told Bloomberg BNA.

The Constitution doesn't support that workaround, Winkler, who writes about constitutional law, said.

The Constitution's “advice and consent” requirement is ambiguous, he said.

Such “vague terms are defined largely by historical traditions and practices,” Winkler explained. “There is no historical tradition for forcing a nominee onto the Supreme Court against the Senate's will,” he added.

“For better or worse, the Senate has stalled on judges in the past, and will likely do so again,” Winkler said.

Somin agreed. Until now, the understanding has been that the Senate's advice and consent is required to seat a Supreme Court justice, he said.

“Indeed, the Senate has, historically, rejected numerous judicial nominations by simply sitting on them indefinitely, including a number of prominent cases involving resistance by Senate Democrats to judicial nominees put forward by President George W. Bush,” Somin wrote on April 11.

The Institution

Apart from being unconstitutional, any attempt to bypass the Senate could be seen as unlawful by many Americans, Somin said.

That could call into question Garland's legitimacy, as well as any cases he participated in, Somin said.

In general, the more the court becomes embroiled in politics, the greater the risk that all of its decisions are seen as illegitimate, Counsel to the President Neil Eggleston said at the April Politico event.

That's why it's enormously important to the institution that the president “play it straight” with Garland's nomination, Eggleston said.

No Big Deal

Somin added that it's not a big deal for the administration to wait weeks or months for the usual process to play out.

If Donald Trump wins the Republican nomination, Democrats will be in a strong position to win the presidency, Somin said.

Moreover, if Republicans get hammered in the presidential election, they might lose a number of seats in the Senate too, he said.

At that point, Obama could easily get Garland—or anyone else—confirmed, Somin said. So there is little downside to waiting, he added.

Until then, Somin said what we are seeing now is separation of powers at work. It's the way the founders set up the process, he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com