WASHINGTON—As President Barack Obama’s efforts to pressure Senate Republicans to confirm Merrick Garland’s nomination to the Supreme Court fail, liberal White House allies are floating a trial balloon of installing Garland on the Supreme Court without Senate confirmation.
Democratic bravado at being able to break Republican resolve over Obama’s Supreme Court pick has proven to be nothing but bluster. White House allies spent millions of dollars and made a full-court press for three weeks, which Sen. Chuck Schumer had confidently claimed would break Senate Republicans and force confirmation of Garland, who currently serves on the U.S. Court of Appeals for the D.C. Circuit.
Yet Democrats’ efforts have fallen so flat that liberal newspapers have had no choice by to publish statements such as “Senate Republicans hold fast against Garland after two weeks of Democratic fury” (Washington Post), “On blocking SCOTUS pick, GOP estab’t & anti-estab’t conservative groups are united” (New York Times), “Prospects for Garland dwindle as two GOP senators revoke support for hearings,” (New York Times), “Meetings but no movement on Garland nomination,” (Roll Call).
Close to a dozen Republican senators are having one-on-one meetings with Garland. But with only two exceptions, these senators remain fully committed to not voting on the Supreme Court nominee and said they will explain that position to Garland during their meetings.
Senate Judiciary Committee Chairman Chuck Grassley is meeting with Garland for breakfast—for the sole purpose of explaining to the nominee face-to-face that Grassley will not hold a single hearing on his nomination or allow a committee vote, because Grassley has concluded that, pursuant to the Biden Rule first announced by Joe Biden in 1992, the next president should fill the seat left vacant by Justice Antonin Scalia’s death.
As Senate Majority Leader Mitch McConnell told Hugh Hewitt on radio, Grassley had been “the Rock of Gibraltar” on sticking to his position that, as chairman, Grassley would not schedule any hearings or votes on Obama’s nomination.
McConnell has said that he, too, will follow the Biden Rule, under which Supreme Court nominations made during a presidential election year should not be acted upon until after the election is over.
Republican senators in tough reelection fights such as Rob Portman, Ron Johnson, Kelly Ayotte, and Pat Toomey have all said they would privately meet with Garland, and explicitly affirmed—then reaffirmed—their support for Grassley’s decision not to have any committee hearings or votes, as well as McConnell’s decision not to allow any action on the Senate floor on Garland’s nomination.
Even most moderates like Senator Lindsay Graham have held the line. “Senator Graham remains opposed to moving forward with the Garland nomination,” Graham’s spokesman, Kevin Bishop, said in a public email. “He continues to believe the next president should pick the next nominee for the Supreme Court.”
Last week, Obama returned to the University of Chicago where years ago he was a lecturer (not a professor, as some outlets are misreporting—Obama never published a single piece of legal scholarship, nor did he ever hold a tenure-track professorship). There, he again lectured the law students, condemning Republicans’ refusal to vote on Garland’s nomination, alleging that “our democracy can’t afford that.”
Yet in 2005 and 2006, then-Senator Obama filibustered President George W. Bush’s judicial nominees, including trying to keep the Senate from voting on the Supreme Court nomination of Samuel Alito. The Senate finally confirmed Alito in January 2006, overcoming Obama’s efforts to block that confirmation vote.
The Republican National Committee responded to Obama’s lecture last week, condemning Obama’s hypocrisy with a press release entitled, “Obama’s Real Message Today: I Was a Phony Then, Not Now.”
Increasingly desperate to take control of the Scalia seat, Democrats are now resorting to extreme legal arguments.
Common Cause is a stridently liberal advocacy group. One of its board members, Gregory Diskant, is now arguing that the Constitution empowers Obama to appoint Garland to the High Court without any vote in the U.S. Senate.
Article II, Section 2 of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.”
For 227 years, each of the 112 justices to serve on the Supreme Court—along with thousands of federal judges on the lower courts—was confirmed by a vote of the Senate as the exclusive means by which the Senate exercises its power of “advice and consent.”
But according to a Washington Post op-ed authored by Diskant, the Appointments Clause of the Constitution grants the president two separate powers, one to “nominate,” and the other to “appoint.”
Diskant claims that when the Senate does not vote up or down on a judicial nominee for a “reasonable amount of time,” which Diskant believes for some conveniently arbitrary reason to be 90 days, “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.”
So long as the Senate was given a “reasonable opportunity to provide advice and consent,” Diskant argues that senators forfeit their constitutional power, so Obama can unilaterally appoint Garland to a lifetime position on the nation’s highest court.
Diskant assures readers that this tectonic shift in constitutional power “should not be viewed as a constitutional crisis,” and is instead merely a “healthy dispute between the president and the Senate about the meaning of the Constitution.”
Although such a thing has never once happened in the history of the United States, Diskant again assures readers that, “This kind of thing has happened before.” (He does not provide examples of anything relevant.)
While it is plausible to regard this op-ed as the radical position of a single lawyer—who cleverly tries to mask this extreme argument by saying at the outset only that “it is possible to read” the Appointments Clause this way, not that it must be read this way—there is a serious possibility that he is floating a trial balloon for the White House, gauging the public’s willingness to accept such a fundamental change in the Constitution’s separation of powers and system of checks and balances.
Especially since this argument is strikingly similar to Obama’s argument regarding his own recess-appointment power. He argued before the Supreme Court he has power to fill vacancies during recesses of the Senate—including those for federal courts—at any moment when there is not a sufficient number of senators on the Senate floor to conduct business.
In other words, Obama argued that on almost any night at 3AM in the morning, he could set his alarm clock to wake up, and fill any vacancy among senior executive-branch positions, or any federal court.
In NLRB v. Noel Canning, the Supreme Court in 2014 unanimously rejected Obama’s position with a 9-0 ruling. The Court held that the power to appoint is jointly held by the president and the Senate. Only the president can put forward a name, and only the Senate can install that nominee in office.
It appears possible Obama may be considering going that route again.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.