The Merrick Garland Precedent and the Kennedy Vacancy

The unconscionable violation of norms in 2016 won't apply in 2018; it's a matter of power, not principle.

Many in my Twitter feed are, quite reasonably, lampooning Republican Senators like Ted Cruz and Mitch McConnell for calling for a fair hearing and swift vote on whomever President Trump nominates to fill the retiring Anthony Kennedy‘s seat on the Supreme Court in light of their earlier position that President Obama’s nominee Merrick Garland should not get a vote in an election year. To be sure, as McConnell points out, this is not a presidential election year. And, I’d point out, Trump isn’t a lame duck President like Obama was; he’s eligible to run again in 2020.

Beyond that, though, HuffPo’s Nick Baumann offers the most salient point:

Even as one who would, ceteris paribus, have preferred Neil Gorsuch to Merrick Garland to replace Antonin Scalia on the High Court, I found McConnell and company’s ploy outrageous. Antonin Scalia died on February 13, 2016, and Obama nominated Garland to replace him on March 16—almost seven full months before the election. By both the letter of the Constitution and all existing precedent, Garland should absolutely have been given a hearing and vote.

Given that Garland was quite moderate, I thought he should have been confirmed, since it’s my belief that Presidents have a right to appoint whomever they wish for cabinet and judicial positions, with the Senate’s advise and consent role merely to ensure that the nominee is qualified experientially and ethically. But, given the Bork and other precedents, I wouldn’t have screamed too loudly if a Senate with 54 Republican votes defeated the nomination and tried to run out the clock in that fashion.

But, as Baumann notes, this really wasn’t about any principle other than trying to avoid having arguably the most conservative member of the Supreme Court replaced for the next 15-20 years or so with a moderate Democrat (Garland, who was 63 at the time of his nomination, was old by the standard of recent nominees). Like it or not (and, again, I don’t), as Doug Mataconis pointed out, McConnell’s gamble paid off when Gorsuch was confirmed instead.

The main difference between this vacancy and the Scalia vacancy, then, isn’t that this is June and that was February; or that this is a midterm election and that was a Presidential year; or even that Trump isn’t a lame duck and Obama was. Rather, it’s that this is a Republican President with a majority-Republican Senate and that was a Democratic President with a majority-Republican Senate.

And, of course, as many, including Doug, have noted on Twitter, Harry Reid’s decision to kill the filibuster for judicial nominees means that the minority doesn’t have any way to block a vote. (In full disclosure, while I fully anticipated that it would backfire in this manner on whichever party enacted the “nuclear option,” I nonetheless long supported ending it for appointments on the grounds that creating an effective supermajority requirement for something that is inherently an Executive prerogative struck me as extraconstitutional at best.)

FILED UNDER: Congress, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. As I noted in my post, Democrats will (rightfully) cry hypocrisy when Republicans go forward with a nomination fight but, as you state, there’s very little they can do about it at this point. The filibuster was their biggest weapon, but that’s gone and the few procedural tools they have left can only delay the inevitable.

    7
  2. SKI says:

    Indeed, the real McConnell precedent is the absolute destruction of comity in the Senate. And it ain’t coming back. We will reap the impact of his “party over country” decisions for at least a generation.

    20
  3. Yank says:

    The main difference between this vacancy and the Scalia vacancy, then, isn’t that this is June and that was February; or that this is a midterm election and that was a Presidential year; or even that Trump isn’t a lame duck and Obama was. Rather, it’s that this is a Republican President with a majority-Republican Senate and that was a Democratic President with a majority-Republican Senate.

    Bingo.

    The entire presidential election excuse was just a bad faith argument by McConnell to justify blocking Garland’s hearing to the gullible media.

    Like I said in the other thread, Democrats are just going to have to run on expanding the court if they control the WH and Congress in 2021.

    12
  4. PJ says:

    @Yank:

    Like I said in the other thread, Democrats are just going to have to run on expanding the court if they control the WH and Congress in 2021.

    I look forward to the 2041 Supreme Court having 87 Justices.

    2
  5. @Yank:

    As I said at the time, and I was excoriated in the comments for this position, it was a political gamble but one that was fully authorized by the rules of the Senate and the Constitution. At the time I thought it was a risky move because all the polls seemed to indicate that Hillary Clinton was going to beat whoever the GOP nominated and that she would likely name a nominee much younger and much more liberal than Merrick Garland. As I said when Gorsuch was confirmed, it paid off. For better or worse, that’s how politics works.

    8
  6. Yank says:

    @PJ: Yeah, it is not ideal. But at this point, it is really the only option.

    I am sick and tired of minority rule in this country.

    3
  7. Paul L. says:

    Democrats will (rightfully) cry hypocrisy

    That is pure weapons grade WhatAboutIsm.
    Let us just ignore that the Democrats are hypocrites too.
    Two Wrongs make a Right.
    The Democrats should be allowed to steal Anthony Kennedy‘s seat on the Supreme Court.

    1
  8. SKI says:

    @Paul L.: what are you talking about?

    7
  9. Paul L. says:

    @Doug Mataconis:
    If Hillary Clinton had won and Democrats took the Senate like Steve Schmidt predicted, Merrick Garland would have been confirmed in the Lame Duck Session.

    “Hillary Rodham Clinton will be the 45th President of the United States. Chuck Schumer will be the Majority Leader of the United States Senate,And the only question that’s still up in the air is how close the Democrats will come to retaking the House Majority.”

  10. Paul L. says:

    @SKI:
    Just repeating the talking points about Gorsuch from the progressive fever swamps.
    And promoted by the Democrats and their dark money minions like Media Matters and ThinkProgress
    How are the Democrats not hypocrites too?

    1
  11. SKI says:

    @Paul L.: again, what are you trying to say?

    How do you think random internet comments are in any way related to refusing to allow a vote on a SCOTUS nominee?

    7
  12. MBunge says:

    It should also be pointed out that this whole thing is the culmination of playing games with judicial nominations that BOTH Democrats and Republicans engaged in.

    Mike

    7
  13. Hal_10000 says:

    OTOH, The Republicans confirmed Kagan in a midterm election year. And as I seem to keep saying, history did not start in 2008. The Garland business, bad as it was, was the culmination of years of escalation on this subject that really got going when the 2003-2004 Democratic Congress refused to confirm almost any Bush appointees (which extended even after the election and included unprecedented filibustering of cabinet nominations). If you look at the CRS report you can see that things went to heck in 2003 and have been there ever since. The only reason the Democrats didn’t filibuster a Bush SCOTUS nomination in his first term was because he didn’t make one.

    4
  14. James Pearce says:

    Dems still don’t understand that this is about power, not process.

    Power and diligence.

    2
  15. BoK says:

    @Hal_10000: Republicans didn’t confirm Kagan, the Senate was held by Democrats at the time

    3
  16. Kylopod says:

    @Hal_10000:

    The Republicans confirmed Kagan in a midterm election year.

    The Dems confirmed Kagan.

    2
  17. Joe says:

    The entire presidential election excuse was just a bad faith argument by McConnell to justify blocking Garland’s hearing to the gullible media.

    How was the media gullible, Yank? I think everybody saw what was going on and the media reported both the facts and the widespread outrage (which I shared). But McConnell had the numbers and the nerve. I agree this was a horrible precedent and will take at least a generation to fix – if it is ever fixed. But it wasn’t because he snuck it by anyone.

    3
  18. Hal_10000 says:

    @BoK:

    Correction noted. Sloppy writing on my part. They did not filibuster her nomination.

  19. Kylopod says:

    @Hal_10000:

    They did not filibuster her nomination.

    They didn’t have the votes to filibuster (“they” being Republican leadership). Five Republicans voted to confirm her, and only one Democrat voted against her, meaning the Dems had more than enough for cloture. I suppose if the Republican leadership had really wanted to block her confirmation they could have exerted more effort to stop the Republican defections, but obviously they didn’t consider it worth it, especially since Kagan wasn’t shifting the balance of the Court. If she’d been replacing one of the conservatives, that would have been a different story.

    2
  20. Kathy says:

    @Hal_10000:

    The Garland business, bad as it was, was the culmination of years of escalation on this subject that really got going when the 2003-2004 Democratic Congress refused to confirm almost any Bush appointees

    Going back to my analogy of the late Roman Republic, that was pretty much the way things unfolded as well. Both the Populares and the Optimates broke norm after norm while staying within the law (though not entirely; beating Gaius Gracchus to death was absolutely illegal).

    Does it matter who started it, who continued it, who was after power and who was after policy goals? To some extent, it does. But the end result was a series of civil wars over several decades, and collapse into one man rule.

    At that, back in the 1st Century CE, long distance communications took anywhere from days to weeks. So the Roman Imperator had to rely on provincial governors to rule in his stead. In this day and age, one man rule is one man rule everywhere.

    6
  21. Andre Kenji de Sousa says:

    @Hal_10000:

    OTOH, The Republicans confirmed Kagan in a midterm election year. And as I seem to keep saying, history did not start in 2008.

    Thomas was the last Justice to be confirmed by a Senate controlled by the party that did not control the White House. That’s the big problem, you are going to end with fully predictable(And problematic) Justices that are not going to be really vetted in the Senate, because with the Garland precedent you are only going to confirm Justices if the same party controls the Senate and the WH.

  22. teve tory says:

    STATEMENTS & RELEASES

    President Donald J. Trump’s Supreme Court List
    LAW & JUSTICE

    Issued on: November 17, 2017
    menuALL NEWS
    Amy Coney Barrett of Indiana, U.S. Court of Appeals for the Seventh Circuit

    Keith Blackwell of Georgia, Supreme Court of Georgia

    Charles Canady of Florida, Supreme Court of Florida

    Steven Colloton of Iowa, U.S. Court of Appeals for the Eighth Circuit

    Allison Eid of Colorado, U.S. Court of Appeals for the Tenth Circuit

    Britt Grant of Georgia, Supreme Court of Georgia

    Raymond Gruender of Missouri, U.S. Court of Appeals for the Eighth Circuit

    Thomas Hardiman of Pennsylvania, U.S. Court of Appeals for the Third Circuit

    Brett Kavanaugh of Maryland, U.S. Court of Appeals for the District of Columbia Circuit

    Raymond Kethledge of Michigan, U.S. Court of Appeals for the Sixth Circuit

    Joan Larsen of Michigan, U.S. Court of Appeals for the Sixth Circuit

    Mike Lee of Utah, United States Senator

    Thomas Lee of Utah, Supreme Court of Utah

    Edward Mansfield of Iowa, Supreme Court of Iowa

    Federico Moreno of Florida, U.S. District Court for the Southern District of Florida

    Kevin Newsom of Alabama, U.S. Court of Appeals for the Eleventh Circuit

    William Pryor of Alabama, U.S. Court of Appeals for the Eleventh Circuit

    Margaret Ryan of Virginia, U.S. Court of Appeals for the Armed Forces

    David Stras of Minnesota, U.S. Court of Appeals for the Eighth Circuit

    Diane Sykes of Wisconsin, U.S. Court of Appeals for the Seventh Circuit

    Amul Thapar of Kentucky, U.S. Court of Appeals for the Sixth Circuit

    Timothy Tymkovich of Colorado, U.S. Court of Appeals for the Tenth Circuit

    Robert Young of Michigan, Supreme Court of Michigan (Ret.)

    Don Willett of Texas, Supreme Court of Texas

    Patrick Wyrick of Oklahoma, Supreme Court of Oklahoma

    https://www.whitehouse.gov/briefings-statements/president-donald-j-trumps-supreme-court-list/

  23. teve tory says:

    Steven White

    @notstevenwhite
    5h5 hours ago

    It really is remarkable how undemocratic American political institutions are. Republicans have only won the popular vote once since the 1988 presidential election and now they’ll control the Supreme Court for a generation

    3
  24. An Interested Party says:

    At this point, it really doesn’t matter who started what…the precedent has now been set that there are no norms or historical procedures to be followed when it comes to the judiciary and the Senate…the rules regarding this process are now whatever 51 senators decide to do…so why shouldn’t the Democrats, when they return to power in the Senate, pack the Supreme Court, hold up any and all judicial nominations by any Republican president, or do whatever else it takes to retain political power…Marquess of Queensberry rules and comity are dead…

    1
  25. teve tory says:

    do whatever else it takes to retain political power

    I was amusing myself the other day by trying to imagine what Dems would come up with if they wanted to do Voter Suppression like the republicans.

    1) No scooters allowed in polling places.
    2) Voting only allowed after 6 pm.
    3) Every voter must go through a metal detector. Anyone claiming it went off because of a hip replacement must get an affidavit from the surgeon who did the procedure, signed the day of the vote.

    😀

    3
  26. An Interested Party says:

    @teve tory: They certainly would mirror Republicans if they did those seemingly ridiculous things…

    2
  27. al Ameda says:

    Maybe it’s time for the meteor.

    Again, any one who asserts that there is no difference between the Republican and Democratic parties does not deserve additional bandwidth or more oxygen.

    5
  28. James Joyner says:

    @Andre Kenji de Sousa:

    Thomas was the last Justice to be confirmed by a Senate controlled by the party that did not control the White House

    That’s a remarkable fact that I haven’t seen anyone point out before; indeed, I wouldn’t have guessed that given how often the control of the Senate has flipped since 1994. One wonders if it’s merely coincidence? Or perhaps Justices time their retirements for such perfect storms? The Garland nomination was the only one not voted on, so it’s not as if opposition Senates have otherwise been running out the clock.

    2
  29. teve tory says:

    Nowhere in the Constitution does it require that a judge be an American citizen. Justice Vladimir Putin, anyone?

    -ed brayton

    2
  30. teve tory says:

    Garrett Haake

    Verified account

    @GarrettHaake
    Follow Follow @GarrettHaake

    Dem. Senator BLUMENTHAL: “The Senate should do nothing to artificially delay” consideration of next justice, but POTUS should take his time & make a centrist choice.

    11:58 AM – 27 Jun 2018

    Virgil Texas

    Verified account

    @virgiltexas

    trump is going to nominate a 26-year old with a law degree from bob jones university who has never been a judge but is currently embroiled in 3 pro se lawsuits against circuit city. the gop senate will take 7 minutes to confirm him

    3:46 PM – 27 Jun 2018

  31. teve tory says:

    WOW:

    Steve Vladeck

    Verified account

    @steve_vladeck
    22h22 hours ago
    More
    Replying to @ObsoleteDogma

    May 14, 1969 was the last day on which a majority of #SCOTUS Justices had been appointed by Democratic presidents.

    1
  32. James Joyner says:

    @teve tory: Thats interesting but not shocking. Nixon/Ford had eight years. Carter four but no vacancy. Reagan had eight years followed by four for Bush. Then eight for client ton, eight for Bush II. And eight for Obama. Republican presidents have dominated the appointment process for half a century. And of course Obama got screwed out of an appointment when Scalia couldnt wait him out any longer.

    1
  33. teve tory says:

    The contest is over. I just found Trump’s new SCOTUS pick:

    NC GOP Drops Openly Racist Candidate Who Claims God Is ‘White Supremacist’


    “What is wrong with being a white supremacist? God is a racist and a white supremacist,” Walker wrote on his website. “Someone or group has to be supreme and that group is the whites of the world … someone or something has to be inferior … In all history in sub-Saharan Africa, no two-story building or a waterproof boat was ever made.”

    https://talkingpointsmemo.com/livewire/nc-gop-drops-racist-state-house-candidate

  34. Kylopod says:

    @teve tory: It brings to mind the exchange from All in the Family

    ARCHIE BUNKER: God is white, ain’t he?

    HENRY JEFFERSON: What makes you think God isn’t black?

    ARCHIE BUNKER: Well, because I was made in God’s image and you’ll note that I ain’t black.

    HENRY JEFFERSON: Well, don’t complain to me about it!

    ARCHIE BUNKER: I ain’t complaining about nothin’. I just mean all the pictures you ever see of God, he’s white…

    HENRY JEFFERSON: Well, maybe you were looking at the negative!

    1
  35. Jay L Gischer says:

    I pretty much agree that a filibuster of appointments doesn’t really make sense.

    And the Senate clearly gets to vote down a candidate, too. But not holding a hearing? Maybe we should have a “timeliness” clause that installs an appointment if no vote is held within X days.

  36. TM01 says:

    @Doug Mataconis:

    As I said at the time, and I was excoriated in the comments for this position, it was a political gamble but one that was fully authorized by the rules of the Senate and the Constitution. At the time I thought it was a risky move because all the polls seemed to indicate that Hillary Clinton was going to beat whoever the GOP nominated and that she would likely name a nominee much younger and much more liberal than Merrick Garland. As I said when Gorsuch was confirmed, it paid off. For better or worse, that’s how politics works.

    Exactly. I was rather surprised at McConnel’s refusal to bring Garland up for a vote, despite a vote not being required as part of advising and consenting, given that the Conventional Wisdom was that Hillary was going to win and knowing she’d nominate a hideous left winger.

  37. An Interested Party says:

    …despite a vote not being required as part of advising and consenting…

    Democrats would be wise to remember that in the future when they control the Senate and the president is a Republican…

  38. TM01 says:

    @An Interested Party: I’m sure you aren’t talking about stare decisis again, Mr. Dred Scot Supporter.