Merrick Garland (Reuters/Kevin Lamarque)

This amazing Supreme Court theory could probably never happen (but maybe it should)

Senate GOPers refuse to consider Merrick Garland before the election. But what if he just... showed up for work?


Gary Legum
March 31, 2016 8:51PM (UTC)

There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working.

Okay, it’s a legal theory, so it is much more complicated than that. But Garland pulling on his judicial robe and plunking himself down in Antonin Scalia’s seat without so much as a fare-thee-well from Mitch McConnell and Chuck Grassley would be the end result, and how much fun would that be? Imagine the sputtering floor speeches from an incensed John McCain and rejected presidential nominee Ted Cruz. Imagine Lindsey Graham mixing mint julep after mint julep at his desk to get himself through the day.

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Indeed, the whole spectacle, timed to hit just as Donald Trump is wrecking the GOP’s down-ballot hopes in the November election, could result in piles of feeble Republican bodies spread across the Senate chamber as every member of the GOP caucus succumbs to apoplexy.

Dahlia Lithwick has a rundown of the theory, which comes from this Yale Law Review article by Matthew Stephenson, a law professor at Harvard. The idea takes off from the Take Care Clause of the Constitution, which says that the president “must take care that the laws be faithfully executed,” and the Appointments Clause, the relevant portion of which reads:

He (the President)…with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…

According to Stephenson, there is occasional tension between these two clauses, and it has become more pronounced in our highly polarized modern moment, because the president appoints cabinet secretaries, agency heads, and other executive positions as essentially surrogates to carry out his agenda, denying him the ability to make these appointments keeps whole swaths of the Executive Branch from functioning, thus inhibiting his ability to faithfully execute the laws.

What if, after a reasonable period of time of the Senate refusing to hold hearings on a nominee, the president just deemed its silence as having fulfilled the “consent” part of advice and consent, and went ahead with the appointment? The norm has always been to take silence and refusal to hold hearings as declining the nomination. But what if a president took it as the opposite?

Stephenson says this radical departure from precedent might be necessary, if for no other reason than as a sort of prod to the Senate to make a good-faith effort to hold hearings for nominees, and not reject them outright for reasons having nothing to do with individual fitness to do the job -- which is what is happening now with Garland.

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True, Stephenson also specifically says this step should not be undertaken with judges, since they are permanent appointments and cannot be removed from the bench except under extraordinary circumstances – committing crimes, developing coke habits, what have you. But Lithwick ignores that, taking the position that since the Supreme Court cannot function properly with 4-4 decisions as far as the eye can see, then the appointment of Garland (or someone else) is absolutely essential to its continued viability as an institution.

So if the Senate is still refusing to so much as hold hearings on Garland by the time the Court’s October session starts up, he and the president should just take that silence as assent. It’s a little bit like the “pocket veto,” when a president or governor simply refuses to sign or veto a legislative bill, and it dies sitting on his or her desk, never becoming law.

Also, it would be hilarious.

There are some enormous holes in this theory that will likely keep it from ever happening. For starters, there is the question of whether John Roberts would go along with it. Does he have the authority to stop Garland from working and expel him from the building? Would he even let Garland in in the first place? Furthermore, if the Senate wanted to sue the administration over this move on the grounds that it’s unconstitutional, who rules on that? Presumably the case could go all the way up to SCOTUS. Assuming the Supremes agree to hear it, does Garland recuse himself? If he does, what if the decision is a 4-4 deadlock? That would mean a lower circuit court’s ruling would stand. Would the GOP accept that ruling if that particular circuit court was made up mostly of Obama and Bill Clinton appointees?

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And finally, though President Obama does seem to have run out of fucks to give where the Republican Party is concerned, he’s smart enough to know that there could be some terrible, far-reaching consequences for such an action. He won’t want an enormous constitutional crisis to be his legacy.

And yet, who doesn’t want to see the Republican Party have to confront the fruits of its Obama-era obstructionism? Garland basically seating himself would theoretically force the party to start moderating its behavior, especially if, as seems likely, the next president is a Democrat. In practice, would it actually step back from the brink? I’m skeptical. Most likely if Garland went along with Lithwick’s scenario, the last month before the election would make November of 2000 look like most of Humboldt County when the annual fall weed harvest comes in.

But I can’t help rooting for it. More than a little.

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Gary Legum

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Elections 2016 Merrick Garland Scotus The Senate The Supreme Court

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