Obama has nominated Garland for the vacant Supreme Court position, but the Senate Republicans will not give him a vote, hoping that Trump will win in November and nominate someone more to their liking. Some have postulated that if Clinton wins, the Senate could confirm Garland before she takes office to avoid her nomination of someone even more to their disliking.
My question is: If Clinton wins, could Obama rescind Garland’s nomination on November 9 to allow Clinton to nominate her choice and thus stick it to the Senate?
Yes. Obama can rescind a nomination at any time, until he leaves office. George Washington was the first president to rescind a nomination to the Supreme Court, so there is precedent.
If the nomination is not acted upon by the Senate, the nomination is returned to the president in accordance with Senate rules.
Obama has made a nomination. The Constitution gives him the authority to appoint, with advice and consent of the Senate. There is a legal opinion that a president could refuse to appoint after the Senate gives its advice and consent… so just because the Senate votes “yes”, a president doesn’t have to go through with the appointment.
In that case the Senate wasn’t going to confirm her. I’m not sure there’s ever been a case where the Prez wanted to withdraw a nomination that the Senate wanted to confirm. I have a little trouble seeing what would happen if Obama withdrew the nomination, but then the Senate went ahead and confirmed him anyways. Flipping through the Senate rules, the issue doesn’t seem to be addressed.
(of course, realistically, Senate Dems aren’t going to want to pass a SCOUTS nominee over Obama’s head and so would just filibuster till the end of the session).
How realistic is it for McConnell and the GOP to have a plan to submit a “yea” vote on Garland the instant they know Clinton is elected? Could the Dem Senators block it temporarily by simply being unavailable that day?
Here’s how I’m imagining it goes down:
Night of November 8, somewhere around midnight Eastern time. Pennsylvania, Virginia, Florida, and Ohio have been called with Clinton favorable in winning most or all of them. The election’s essentially hers. McConnell and the GOP submit formal paperwork to, I don’t know, the president? The official Senator bookkeeper? that they all vote yes on Garland.
Can they simply vote as a quorum? That same night, none of the Dem senators make themselves available. Can the GOP simply force it through if there’s more than 50 votes?
Meanwhile, Obama, also seeing that Clinton is about to win, withdraws his nomination of Garland through whatever official means there are. A hand-delivered letter to the Senator majority leader? The official presidential recordkeeper?
The next day, McConnel claims that the Senate confirmed Garland’s nomination, but Obama counters that he withdrew the same night. What happens now?
Not sure on the senate, but these government bodies everywhere generally have rules of order - votes have to be scheduled and put on the agenda, a process has to be followed, notices given, etc. I’m sure the senate is like this. Emergency measures probably need unanimous consent, and due notice of assembly has to be given. 50 senators (or whatever the quorum) cannot just gather in a bar somewhere and declare a meeting in session.
If it’s beat the clock scenario, there are all types of “parliamentary procedures” the Dems could use, so Obama wins easily. However, keep in mind that Obama has pledged not to withdraw Garland’s nomination, so he’d have to back away from that. Maybe not a big deal, but still something to keep in mind.
Why would Obama withdraw Garland’s nomination? Everything I’ve read is that Obama thinks Garland is a good choice. Maybe he would have nominated someone else if there was a Democratic Senate, but there isn’t.
The only way withdrawing Garland’s nomination would make sense is if the Senate flips Democratic after the election. Then Clinton could nominate Noam Chomsky. Except Clinton is even more of a centrist than Obama, so she’s not going to nominate Noam Chomsky. She’s going to nominate another professional centrist. Like, you know, Garland.
If Clinton wins and the Democrats take the senate, Obama’s withdrawal of Garland’s nomination would be a totally cynical and politically vicious thing to do and would serve the Republicans right.
Technically, a precedent that fits this description happened in 2005. O’Connor announced her intention to retire, and Bush Jr. nominated John Roberts as successor. Before he could be confirmed, Chief Justice Rehnquist died. Bush withdrew Roberts’ nomination as successor to O’Connor and re-nominated him as successor to Rehnquist. Roberts was duly confirmed in that capacity. But I think it’s fair to assume that the Senate would have confirmed Roberts as an Associate rather than Chief Justice if the original nomination had not been withdrawn.
Of course, this is probably not exactly the scenario you were thinking of, since, even though Roberts’ nomination was withdrawn, he ultimately ended up on the Supreme Court in an even higher capacity, and the reason for the withdrawal was not a fight between the Senate and the White House.
There have to be some consequences for the unprecedented obstructionism or else it will happen again. If the GOP gambles that they can block the moderate Garland nomination and loses, then there should be a less moderate nominee replacement so that they won’t take that chance again. Otherwise, why not just try to block every Democratic nomination regardless of how moderate? If you lose, worst case scenario, that nominee gets through.
There is a Department of Justice opinion* from the Clinton administration which argues that a president could refuse to sign the commission that is the last step in the appointment process after the Senate has voted in favor of Advice and Consent. Thus a president is not bound to complete the appointment just because the Senate votes to confirm.
This hasn’t been tested, as far as I know. And it may run counter to text of the constitution which provides that “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States”. It has been argued that the “shall nominate” puts a requirement on the president to put forth a nominee. Perhaps the “shall appoint” provides a similar mandate to complete an appointment after the Senates gives Advice and Consent."
First of all, it is illegal for a Senator to not be present without permission of the presiding officer. If a Republican makes a Call of the House the awol Senators can be arrested and brought to the Chambers.
Second,
If there is a majority and 2/3 of that majority approve the nomination then he is our new SC Justice.