The Garland Nomination: The Unstoppable Force Meets The Unmovable Object

Merrick_GarlandBelow 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

19 thoughts on “The Garland Nomination: The Unstoppable Force Meets The Unmovable Object”

  1. “…faithfully perform the duties of the office…”

    Failure to provide “advice and consent” is a failure to perform the duties of the office. Recall them.

  2. None of this election nonsense matters. The Deep State will have its way no matter who is President, in Congress, or on the bench. They are our true rulers. We will have a continuation of the same monetary, economic, and foreign policies — boom-and-bust cycles, eternal war, and globalization through trade agreements that decimate the American worker. If need be, by hook, by crook (false flag events). After all, to make an omelette, you must break a few eggs, right…

  3. The U.S. Constitution only functions properly when Congress either follows it -or- amends it. Perverting or ignoring the “supreme law of the land” produces these types of results.

    The Framers of the U.S. Constitution never intended for “human persons” to have less free speech and fewer rights than “corporate persons”.

    Fast forward to 2016: If enough members of Congress actually represented “human persons” they might care what voters actually think of them. Today Congress has about an 11% approval rating among “human persons” but probably a 90% approval rating with “corporate persons”.

    That’s why many (not all) members of Congress could really care less what voters think of them – they don’t work for us.

  4. “In a further blow to Senate Majority Mitch McConnell’s efforts to hold a hardline on not even considering the confirmation of Merrick Garland to the Supreme Court, Sen. Mark Kirk (R-IL) has gone from breaking ranks with McConnell to calling him and other GOP senators out on it. ” Kirk is in a tough re-election race with Tammy Duckworth. The Senate’s failure to take a vote on this Niles West graduate could seriously cost Kirk the senate seat.

  5. Popularity rising? He’s been largely quiet in the news and he’s a short-timer; that’s popular with me.

    Does the constitution detail “how” the advise and consent” is to be conducted? Why waste taxpayer money on a dog and pony show?

  6. The article states that a recess appointment goes away when Congress comes back from their vacation. I do not think so. Once in recess, always in recess. The term “lame duck” is often used to describe a President in his last year or so in office. “Lame snakes” should be the term to describe Congress right now. Usually a lame snake has a bad bone in its back or spine and cannot be healed. Same is true for this Congress. Mitch McConnell is the name of the lame brain from KY jelly territory who gets on television quite often and looks like the guy in “Went In Dumb, Come Out Dumb Too”. Right now he is hustlin round DC in his alligator shoes. He is doing what he says behind closed doors “Keeping the N Guy down”. He was recently quoted as saying that: “You don’t have to say the N guy word three times any more. You just say Obamacare.” Mitch has been giving his daily pitch on the Supreme Court nominee.

    There is an old movie which airs on television every year in December. It is starred by Chevy Chase and is called Christmas Vacation. It is relevant to the present scenario. Obamacare won’t get struck down by a 4 to 4 vote Mitch. Maybe Congress will have to repeal it Mitch. Maybe the voters in KY jelly territory need to repeal the Mitch. They need someone less greasy.

  7. Trump is just crazy and unpredictable enough, that if he is elected, he could even appoint a very liberal SC judge.

  8. If they refuse to vote, Obama should name in interim justice. Let them smoke that. Obama was elected twice and has about ten months left to serve. They’ve done their best to fulfill McConnell’s promise of doing nothing, now they will pay the price.

  9. I seem to recall there being an effort made by Republican Arlen Specter during the Roberts confirmation to assure those on the pro-abortion-rights side that Roberts would not be inclined to overturn Roe. I wonder if there would be any Democrats pestering Garland with inane questions about whether the Heller decision was stare decisis or even “super” stare decisis?

    Not that there is any way to really guess how much of a boon or disaster this judge would be. The hearings are an exercise in obfuscation. The accepted (and fairly glib) wisdom is that it’s inappropriate for a judge to discuss his thinking on any case of contemporary consequence, because such discussion might show that the nominee has “pre-judged” the case. One might reasonably think that any answer would be given with the obvious qualification that, “I am thinking human being and it would be ridiculous for anyone to take my current reasoning as some sort of guarantee that my mind could never be changed if a compelling case were made for the other side.” Apparently, it’s preferable to maintain the delusion that these great legal minds have never given serious consideration to any controversial issue that might still come before the Court. Idiocy.

    Regardless, once on the bench, these judges’ decisions on various cases often conflict with the presumed desires of the President who nominated them. For every Heller, there’s a King v. Burwell. For every Citizens United, there’s a Kelo. For every U.S. v. Lopez, there’s a Raich. 🙁

  10. @DavidB

    You said they were violating their oath. I said they were keeping it. Here is the oath Senators took:

    Oath of Office

    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

    I don’t see anything in there about, “I do solemnly swear to consent to whatever liberal anti-2nd Amendment justice Obama nominates to the SCOTUS.” nor do I see, “I do solemnly swear to pretend to consider whatever liberal anti-2nd Amendment justice Obama nominates to the SCOTUS.”

    Sooo, no I didn’t jest!

    Squeeky Fromm
    Girl Reporter

  11. The Republican senators are violating their oaths of office. A recallable offense I should think.

  12. @Josepj Jones

    I like Jeff Fahey. I downloaded some of his songs on youtube. I will check for that one. If you like guitar, have you ever heard Bert Jansch and “Soho.” I discovered them all on Pandora, when they started popping up on my Medieval Babes Christmas songs station. Plus, Pentangle, and Fairport Convention, and even some good Donovan. This is all on topic because uh. . . uh. . . OH! I read somewhere that Merrick Garland really likes this kind of music!

    Squeeky Fromm
    Girl Reporter

  13. Squeeky Fromm,
    Check out “Requiem for Mississippi John Hurt” by John Fahey, one of my favorite guitarists. I used to be able to play that song, but it’s been so many years that I forgot it. Looking forward to re-learning it again. Open C tuning, IIRC. It’s a very nice song, and fitting original tribute to the legendary musician.

    RIP John Fahey
    RIP Mississippi John Hurt

  14. Rules to thwart the will of the people should be changed! I am sick of the “we need to make rules that make elections worthless” attitude of our elected officials. The president was elected; the Supreme Court justice died. He has a right to appoint and they have the right to vote no… I get that the constitution doesn’t say that they will have a hearing but how can they advise if they don’t? The Republicans know that they have an obligation to give this man a hearing. They don’t want to for the same reason they have been obstructing Obama at every turn. I’m really sick of it.

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