Below is my column in USA Today on the Garland nomination. I have said previously that I believe that the Senate should give the nominee a hearing and a vote. However, there is nothing in the Constitution that requires (or would compel) such action. Of course, if a Senate prolongs non-consideration, a president can use a recess appointment to temporarily fill the slot (assuming the Senate does not stay in pro forma session to bar such a manuever).
Here is the column:
Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, our political system seems poised to answer the question of what happens when an unstoppable force meets an immovable object. The unstoppable force, Obama, insists that his nominee to replace the late justice Antonin Scalia be given a hearing and a vote. The immovable object is the Republican Senate, which is equally determined to prevent both. Who will prevail?
Obama is enjoying a rise in popularity, and recent polls show that the public favors a hearing and vote on the nominee. A popular president with a popular cause would normally seem an unstoppable combination. However, less than half of Republicans favor a hearing, and Republicans can cite a host of areas that would likely flip from conservative to liberal rulings with the addition of even a moderate to replace the conservative Scalia.
A moderate could easily change the results in cases of unions forcing non-union members to pay dues; states crafting districts under standards governing one person, one vote; exempting religious organizations from the Affordable Care Act’s contraceptive mandate; allowing universities to consider race in admissions; and exempting millions of undocumented immigrants from deportation.
In particular, Garland will be viewed with suspicion over gun rights. In 2007, a three-judge panel of the D.C. Circuit ruled against the city’s handgun ban in Parker v. District of Columbia. In an unsuccessful move for a rehearing by the full court, Garland voted with three other judges to reconsider and was presumed to oppose the panel decision. The case went on to the Supreme Court and became known as District of Columbia v. Heller, the historic ruling recognizing the individual right to bear arms. For conservatives, Heller is gospel and Garland seems like a non-believer.
Other areas could also flip. This includes campaign financing, in which the new majority could change the result in Citizens United that recognized that corporations have free speech rights, including the right to contribute to elections.
Garland tends to favor agencies, though he has made a number of notable rulings against agencies in national security and environmental cases. Yet Garland is viewed as fairly conservative on criminal cases and would be viewed as center right overall among the possible nominees.
In the end, the only thing worse for the GOP in barring a vote might be allowing a vote that would literally wipe out core political issues ranging from abortion to affirmative action. A Republican senator can survive a role in obstructing a nominee but would unlikely survive a role in facilitating the loss of gun rights.
Then there is moving the immovable object. Republicans have presented an impressive unified front against any hearing for the nominee. Even moderate Republicans may be loath to be the first to break from that thin red line. However, five GOP Senators (Ron Johnson of Wisconsin, Kelly Ayotte of New Hampshire, Mark Kirk of Illinois, Rob Portman of Ohio and Pat Toomey of Pennsylvania) are already considered endangered, even without the baggage of campaign to block a highly qualified, relatively moderate nominee.
The question is whether, despite the overwhelming support for the hearing, blocking a Supreme Court confirmation would be a key motivator for voters when other factors could have a stronger influence. Specifically, the likely presidential nominees of both parties — Donald Trump and Hillary Clinton — have record negative polling. In a race that is shaping up to be a battle of highly polarizing personalities, the timing of a vote on a Supreme Court nominee might not ultimately be a decisive issue.
However, it is precisely the intense hatred toward Clinton among some in the GOP that could be a way for Obama to move this object. To the extent that it looks like Clinton will win (particularly if polls show moderate Republicans and independents abandoning Trump), the party might prefer a moderate nominee under Obama to the possibility of a more liberal nominee (and a Democratic-controlled Senate) under Clinton. Indeed, if Clinton wins, today’s GOP-run Senate could, as its one of its last acts, grab the moderate that they know rather than take that risk.
A more extreme scenario will occur if Democrats lose the presidential race but win a majority in the Senate. There will then be a short window during which the new Senate takes power and overlaps with the waning Obama administration. Under the Constitution, the new senators get sworn in Jan. 3 and Obama leaves office Jan. 20. That gives Democrats control of both the White House and the Senate for 17 days.
If the newly empowered Senate Democrats wanted to confirm Obama’s nominee before he left, and if they didn’t have the 60 votes needed to break a filibuster, they’d have to change their rules. The Democrats enraged Republicans in 2013 with a rules change allowing most presidential nominees, but not Supreme Court nominees, to be confirmed by a simple majority vote. They’d now have to go all the way and get rid of the Supreme Court exception — a position they would no doubt regret when, days later, a Republican president took the oath.
In the end, the only unfortunate certainty is where Garland will be. That is, stuck between the unstoppable force and the immovable object.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors.
Published March 17, 2016