Saturday, March 19, 2016

No, The Constitution Doesn't Contemplate Stonewalling as Part of the Nomination Process, Why do You Ask?

Merrick B. Garland/AP photo-Evan Vucci
So Mitch McConnell is telling President  Obama (and I'm paraphrasing): "Take a hike, we won't consider your nominee for the Supreme Court."

Our Broken Nominations Process

Justice Scalia, the firebrand strict constructionist Supreme Court justice, who served the institution for nearly 30 years, died in his sleep on John Poindexter's ranch on February 13, 2016. Donald Trump promptly fanned a nutty conspiracy theory about his death. Within an hour of the announcement of Saclia's death, Senate Majority leader Mitch McConnell made his own announcement: "This vacancy should not be filled until we have a new president," he said. He vowed not to meet with or grant a hearing to anyone nominated by president Obama. McConnell was soon egged on by Senators Ted Cruz and Marco Rubio. “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement,” Cruz said on Twitter.

Mitch McConnell, Senate Majority Leader/AP photo
The Face of Obstruction
A lot has changed in the judicial nomination process since Scalia, at age 50, was unanimously approved by the Senate on September 26, 1986. The judicial nomination process is broken and it needs to be fixed. If Obama is successful to appoint Garland after a prolonged political fight he will have done nothing towards fixing the larger problem.

Miguel Estrada and Benjamin Wittes have pointed out in a Washington Post article that the GOP's refusal to meet with or grant a hearing to Garland is but the latest disgrace in a judicial nomination process that has been broken for some time. For decades now, both parties have held up judicial nominations in committee for very long periods of time, and both parties have obstructed  nominees from receiving an up or down vote (e.g. by filibustering). As a result there are currently  83 vacancies across the federal judiciary (about 2.5%). In other words, the Supreme Court is the least of our worries.

Here are Estrada and Wittes:
We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. The savvy citizen should ... heavily discount anyone who speaks in the language of principle about the rules or norms that do or should govern the treatment of either a judicial nominee or the president who sends that nominee to the Senate. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules.... 
Both [parties] have chosen, in increments of one-upmanship, to replace a common law of judicial nominations that was based on certain norms with one based on power politics alone.
Estrada and Wittes incorrectly suggest that both parties are equally guilty and that this GOP stonewalling of the Garland nomination may be another escalation, but that it is not different in kind.  I disagree. Up until now what we've seen is delays in the judiciary committee, and filibusters by individual senators aimed at preventing an up or down vote. In other words, we've seen procedural maneuvers that have prevented the Senate from acting. But what we have with the GOP's current refusal to consider anyone the president might nominate is truly new. The GOP's present obstruction is not a procedural delay, rather it is a decision by the Senate not to exercise its advise and consent role.

Statistically, obstruction has been raised to unprecedented levels during president Obama's term.

The Nomination of Judge Garland

The president has a duty to nominate and appoint judges to the Supreme Court. Article 2, Section 2 of the constitution says "The President shall... nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." There is no "except in the last year of the president's term" clause.

This week President Obama nominated judge Merrick B. Garland to fill the vacancy created by the death of Justice Antonin Scalia. There is widespread consensus in Congress, across both parties, that judge Garland is a moderate and excellent judge. He received strong support from Republicans when he was affirmed to the Court of Appeals for the District of Columbia Circuit in 1997, and again when he was appointment as chief justice of that court in 2013. There is a widespread consensus that if granted a hearing, Judge Garland would be approved.  But, as noted, the Senate Majority Leader, Mitch McConnell has vowed that the Senate will not meet with, grant a hearing to, or vote on the nomination of judge Garland.

How Does a "Nominate-Advise & Consent-Appoint" Mechanism Work Anyway?

Some have suggested that "The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee." I think that is incorrect. A nominate-advise & consent-appoint mechanism is not workable if the party that is supposed to advise and consent goes AWOL.

To be sexist for a minute, if we enter into a pre-nuptial agreement which says "Food purchases will be made by the wife, with advice and consent of the husband, and then the wife shall cook the meals...." and the husband says "don't bother me, I'm at work!" we know what happens next.  The wife will do her food shopping, and cook the meal, and the husband had better not complain about the choices made.

Imagine Hillary Clinton as president through 2024--sorry if this makes you shudder--and a continued GOP majority in the Senate. Are people seriously suggesting that the Republicans in the Senate, consistent with the constitution, could stonewall any Supreme Court appointment through 2024? This is not just about the balance of the Obama term. Obviously Republicans would prefer a 4-4 split on the court indefinitely rather than a 5-4 liberal split. Why would they act to approve a new Supreme court judge under president Clinton?  And remember those 83 vacancies. Are people really suggesting that the Senate could continue to degrade the federal judiciary by allowing that vacancy rate to climb to 5%, 10%? Is that really what the constitution contemplates?  I don't think so.

What's Next?

This is going to go by the way of politics. Obama has formed a political team headed by Stephanie Cutter to fight for the Garland nomination. Cutter was an Obama deputy campaign manager from the 2012 election. There are already some cracks forming on the Republican side. Republican leaders have spoken with Garland by phone, and senators Grassley, Ayotte, Johnson, and Portman (all up for election this year) have said they will meet with Garland--even if they refuse to formally consider the nomination. Republican Senators Collins and Inhofe also have indicated they will consider meeting with the candidate. Presumably McConnell will be able to head them off, but if Hillary Clinton is elected president in November--which seems likely--chances are Garland will be confirmed before she takes office.

But if there is ever an opportunity for the courts to weigh in to fix the current disfunction in the nomination process for judges and executive offices, it seems this is it. The current fact pattern is as favorable as the president could hope for to have the courts impose some order on the nomination process. It is surprising to me, therefore, that there is not more consideration given in public discussion to the possibility of involving the courts. I will examine the possibility for a legal option in a separate post.

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