I think The Bulwark should open a discussion of what happens if Biden gets another shot at a Supreme Court nominee, when the Republicans are in control of the Senate.
McConnell’s theft of Obama’s Supreme Court pick was, in my mind, a purely Unconstitutional gambit that paid off, mainly owing to the fact of its audacity as a wholly unprece…
I think The Bulwark should open a discussion of what happens if Biden gets another shot at a Supreme Court nominee, when the Republicans are in control of the Senate.
McConnell’s theft of Obama’s Supreme Court pick was, in my mind, a purely Unconstitutional gambit that paid off, mainly owing to the fact of its audacity as a wholly unprecedented act of norm-breaking. The public was not outraged, partly because it was a power-grab that a large minority was completely on board with, and partly because any objection coming from the remainder of the electorate was diffuse and confused (and the fact that Obama was not willing to go scorched-earth over it, because, well, he never went scorched-earth. The Best lack all Conviction and all that).
But the new power that McConnell has arrogated for the Majority Leader in Supreme Court nominations, viz. the ability to simply deny the President his/her appointment if they belong to the opposing party, is beyond outrageous and cannot stand as a precedent for future nominations to the Court. McConnell’s gambit has Constitutional Crisis written all over it, and it’s something that has the potential to spill over into political violence.
So we should get out ahead of this kind of scenario, and wargame what the messaging should be, if McConnell is in position to try to re-run the Garland gambit.
My take (for what it is worth), is that Article II Sec. 2 accords the President the prerogative obligation to make appointments to the Supreme Court. “Obligation” because making needed appointments is what the text says the President shall do; the President does not have the prerogative to sit on a nomination until the Senate has an ideological composition favorable to the nominee. But the Senate’s ‘advise and consent’ prerogative is pursuant to this prerogative obligation of the President’s; they cannot act in such a way (notably, by refusing to play their Constitutional role and acting as if the nominee doesn’t exist) that puts the President in violation of his/her duties. The Senate, in other words, must make an affirmative response to the nominee, with a hearing or at least a Yea/Nay vote. For the Majority Leader to short-circuit the process of appointments by simply refusing to respond to a nomination, is in effect a cancellation of the President’s appointment-power – and it is a violation o the Separation of Powers regards the Court itself, in the bargain. It is Unconstitutional, coming and going.
A Majority Leader pulling the Garland gambit is throwing the country into a Constitutional Crisis; and in such an event, the President should have the prerogative to directly appoint the nominee. After all, the clear implication of the text is that the Senate must respond to nominees (“advise and consent” are affirmative, transitive verbs, not intransitive verbs indicating acting by omission). Nonaction by the Senate can and should be taken as implied consent. A President with audacity equal to McConnell’s can call a press conference, announce the appointment, and send the new Justice in a limo direct to the Supreme Court. What can the Majority Leader do about it? How many divisions does he have? McConnell is smart enough, I reckon, that if a Democrat President seriously threatens to do this, he will back down, and agree to abide by our traditions for hearings and vote. And it will help the President’s case, if there is a public conversation about all this before we are right in the thick of a (entirely foreseeable) crisis.
I think The Bulwark should open a discussion of what happens if Biden gets another shot at a Supreme Court nominee, when the Republicans are in control of the Senate.
McConnell’s theft of Obama’s Supreme Court pick was, in my mind, a purely Unconstitutional gambit that paid off, mainly owing to the fact of its audacity as a wholly unprecedented act of norm-breaking. The public was not outraged, partly because it was a power-grab that a large minority was completely on board with, and partly because any objection coming from the remainder of the electorate was diffuse and confused (and the fact that Obama was not willing to go scorched-earth over it, because, well, he never went scorched-earth. The Best lack all Conviction and all that).
But the new power that McConnell has arrogated for the Majority Leader in Supreme Court nominations, viz. the ability to simply deny the President his/her appointment if they belong to the opposing party, is beyond outrageous and cannot stand as a precedent for future nominations to the Court. McConnell’s gambit has Constitutional Crisis written all over it, and it’s something that has the potential to spill over into political violence.
So we should get out ahead of this kind of scenario, and wargame what the messaging should be, if McConnell is in position to try to re-run the Garland gambit.
My take (for what it is worth), is that Article II Sec. 2 accords the President the prerogative obligation to make appointments to the Supreme Court. “Obligation” because making needed appointments is what the text says the President shall do; the President does not have the prerogative to sit on a nomination until the Senate has an ideological composition favorable to the nominee. But the Senate’s ‘advise and consent’ prerogative is pursuant to this prerogative obligation of the President’s; they cannot act in such a way (notably, by refusing to play their Constitutional role and acting as if the nominee doesn’t exist) that puts the President in violation of his/her duties. The Senate, in other words, must make an affirmative response to the nominee, with a hearing or at least a Yea/Nay vote. For the Majority Leader to short-circuit the process of appointments by simply refusing to respond to a nomination, is in effect a cancellation of the President’s appointment-power – and it is a violation o the Separation of Powers regards the Court itself, in the bargain. It is Unconstitutional, coming and going.
A Majority Leader pulling the Garland gambit is throwing the country into a Constitutional Crisis; and in such an event, the President should have the prerogative to directly appoint the nominee. After all, the clear implication of the text is that the Senate must respond to nominees (“advise and consent” are affirmative, transitive verbs, not intransitive verbs indicating acting by omission). Nonaction by the Senate can and should be taken as implied consent. A President with audacity equal to McConnell’s can call a press conference, announce the appointment, and send the new Justice in a limo direct to the Supreme Court. What can the Majority Leader do about it? How many divisions does he have? McConnell is smart enough, I reckon, that if a Democrat President seriously threatens to do this, he will back down, and agree to abide by our traditions for hearings and vote. And it will help the President’s case, if there is a public conversation about all this before we are right in the thick of a (entirely foreseeable) crisis.