NOTE TO READERS: In a poll taken last month for the Boston-based Edward M. Kennedy Institute for the United States Senate, only thirty-nine percent of those surveyed could explain that the Senate is assigned the role of advising and consenting to new Supreme Court nominees. In recent weeks, since the death of Justice Antonin Scalia, the blog has received many inquiries about how this process works, or might work. This commentary analyzes the prospects for Senate action — sooner or later — on President Barack Obama’s nomination of federal appeals court Judge Merrick B. Garland to succeed Justice Scalia. The post responds to many of those questions.
With Republican leaders of the Senate making fresh vows this week that they do not plan to hold hearings or a vote on the Garland nomination, the prospect at least for the next several weeks is for a series of meetings by the nominee to get acquainted with senators, but no more than that — even though political voices will be raised across the nation on what should or should not be happening in the Senate.
Although Democratic leaders have said they are detecting some signs that the GOP resistance is already beginning to soften, the evidence they offer has added up to little more than that some Republican members are saying they would be willing, as a courtesy, to meet the judge for a chat. Assume then, that the Republican plan to hold out until after the November 8 presidential election remains unchanged: does that doom the Garland nomination? The Constitution would seem to say “no.”
It is a virtual certainty that, between now and election day, no one has the legal authority to force the Senate’s GOP leadership to do anything about Judge Garland if they remain committed not to do so. The Constitution’s Speech or Debate Clause and its assignment to the Senate of the power to write its own rules on how to proceed practically guarantee that no one — not President Obama, not Judge Garland, not any Democratic senator or voter — could file a lawsuit, with any hope of succeeding, to compel some action.
Another strike against such a legal claim is that none of those could show that they have “standing” to sue under the Constitution’s Article III, because none of them has a legal right to any action on a presidential nomination, and thus they could not prove that they had been injured in a legal sense; a direct, personal injury is a core requirement of a right to sue in the federal courts.
As recently as two years ago, the Supreme Court newly reinforced the broad scope of the Senate’s authority, under the Constitution, to set its own rules. That was in the case of National Labor Relations Board v. Noel Canning — a decision on the president’s authority to fill government vacancies by making appointments when the Senate is in recess (more on that authority later). In essence, the Senate won, and President Obama lost.
Perhaps it may be that, if the Senate leadership were to take some formal action declaring that they would not act on the nomination because he is a man, or because he has been a member of the Democratic Party, that might run afoul of constitutional guarantees of equality, and might encourage an inventive lawyer to file a lawsuit seeking to rectify that wrong.. The sheer frivolity of the idea that they would do anything like that illustrates that suing the Senate for something it does in the regular course of its business is close to folly.
So, if the suing option is out of the way, is that the end of the matter? Again, no.
Suppose that the Senate (and the House, which has to agree) takes a recess before the November 8 election, to allow members to do some final rounding up of votes. And suppose that, between now and the end of the Supreme Court’s current Term, it becomes clear that the eight Justices are beginning to have serious trouble dealing with some of the big cases before them — for example, by splitting four to four, with no definitive result, or by ordering them postponed until the Court opens a new Term in October. Could the President call the Senate back into session, when its members definitely would rather be in their home states than in Washington?
The answer is: Yes, he could. As long ago as 1947, a top legal adviser in the Justice Department (with the felicitous name of George T. Washington) wrote a memo declaring that the president has that authority even if Congress has specifically set the dates on which it plans to be out of session. Under the Constitution’s Article II, spelling out the powers of the presidency, the chief executive has the authority to summon one or both houses of Congress into session, provided that it is for an “extraordinary occasion,” as the Constitution phrases it. It appears that it is within the president’s unchecked discretion (except for a personal sense of not crying wolf unnecessarily) to decide exactly when an occasion is sufficiently “extraordinary.” Would a faltering Supreme Court be sufficient?
Again, though, the Senate — then still under Republican control — could return to its chamber, and still do nothing about Judge Garland while fuming at President Obama. Stalemate, again, with no immediate constitutional remedy to force action.
The parade of scenarios then turns to the day after election. If Congress has not set a date for returning on that day, once more President Obama could summon it back to town more promptly, this time with the results of the election (probably) known, and the president might hope that minds would have changed. Of course, there could be another Bush v.Gore stalemate in the Electoral College results, and the Court might have to settle things again the way it did in 2000. But: could an eight-member Court agree on a decision settling the contest? That might be harder than it was the last time; it divided five to four then, and issued six separate opinions.
An aside is perhaps in order at this point: as the potential scenarios move along a spectrum toward constitutional fantasia, the predicament that the Senate, the White House, Judge Garland and the Supreme Court find themselves in right now looks more and more untidy. Can it be that governing America under its two-century-old Constitution is starting to get out of reach in a deeply polarized nation?
Back, then, to the next scenario. And from this point on, it is necessary to throw in some assumptions about what has happened on November 8, in both the presidential election and the election results for the Senate as a whole. (Another aside: the blog has no partisan preferences here, so let’s keep it down the middle.)
If a Republican wins the White House, and the Senate stays under Republican control:
In that situation, President Obama has until January 20 to try to save Judge Garland’s chances to serve on the Supreme Court — assuming that Obama does nothing between election day and January 3, when the new Congress (including the new Senate) arrives in Washington.
If the usual happens, the new Senate will organize itself, and then recess until presidential inauguration day. The empty seat on the Supreme Court is still empty. The Constitution now comes back into play: Article II’s grant of authority to the president to “fill up all vacancies that may happen during the recess of the Senate.” If President Obama were to invoke that authority in January, he could put Judge Garland on the Supreme Court, without having to consult the Senate in any way; Garland would have the seat at least until the end of the Senate’s “next session,” as the Constitution itself promises. If “next” does mean the session after the one that started next January 3, “Justice” Garland — at a minimum — could stay on the Court until January 3, 2019. (A few Justices in history have served less than that.)
But, with the help of the Supreme Court two years ago, the new Senate, still led by Republicans, could frustrate President Obama in making such an appointment. Under the Noel Canning decision, a Senate recess must last a minimum of ten days before that authority exists, and the Senate leaders could arrange for that body to come into session every three days, not to do any real business but to conduct a “pro forma” session that interrupts the recess. Not enough time for President Obama to put Judge Garland on the Court.
If a Republican wins the White House, but the Democrats take control of the Senate:
First scenario: the Democrats only gain a fifty-one-vote margin of control. Their leaders could move quickly to change the rules, to wipe out the possibility that the Republican minority could block, with a filibuster, a regular nomination by President Obama prior to January 20. As of now, Senate rules do permit a filibuster, requiring sixty votes to stop it, but a simple majority is all that would be needed to change that. The Senate could then move ahead to hold hearings and then cast a vote on Judge Garland. If, as would seem likely, he were confirmed, he would then have a permanent seat on the Court (assuming “good behavior,” the only requirement for staying on the bench for life).
Second scenario: the Democrats gain a majority of sixty or more votes. With that, they are fully in charge, do not need to change Senate rules, and can move ahead with the Garland nomination, even though a Republican president is just about to take office and gain the authority — if the seat were still to be open — to make a different nomination. However, if the Senate did not move very fast, to complete the task before noon on January 20, the question would arise that day: could the new president withdraw Obama’s nomination of Garland? The idea has never been tested, but the answer is almost certainly yes. An Obama nominee’s chances could expire right after the new president takes the oath, before anybody goes to lunch.
The new Democratic majority in the Senate would then be faced with acting on a new GOP choice, or opting for a truly daring move: declaring they wouldn’t act at all until another election had been held to test the people’s will. (That would be, of course, the kind of partisan “tit for tat” that President Obama protested when he nominated Judge Garland and urged the Senate to act.)
If a Democrat wins the White House, but the Republicans keep control of the Senate:
One scenario: the GOP leaders of the Senate, concluding that Judge Garland would be more acceptable to them than a nominee that the new Democratic president would send to the Senate, could move ahead, holding hearings on the judge, and vote him onto the Supreme Court. Would there be much risk of the new president withdrawing the Garland nomination if the GOP-led Senate did not finish the job by noon on January 20? Depending upon how the new president felt about the president just leaving office, a substitution might not be very likely. After all, the new president may get one or two more opportunities to fill future Supreme Court vacancies.
Another scenario: the GOP leaders of the Senate give up on Judge Garland, and take a chance that a new Democratic nomination coming from the White House would be more acceptable. Not much chance of that, frankly.
If the Democrats win both the White House and control of the Senate:
The Senate’s new leaders and the new president likely would agree on what to do, and they would have the votes to do it — even if the new Democrats in the majority consist of only fifty-one members. They could settle on Judge Garland, or on someone else, but it is probably fair to assume that Judge Garland would not be sent packing.
So, is there a bottom line to this? Judge Garland, on his visits to senators’ offices in coming days, would be well advised to make a lot of new friends. The Supreme Court may still be in his future.