# Garland should just sit down and judge? **URL:** \ **Category:** Great Debates\ **Created:** [March 31, 2016, 5:04pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757 "2016-03-31T17:04:24Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 2, 2016, 1:49pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/101 "2016-04-02T13:49:54Z")
> [@Bone](#): > > They are denying Obama the ability to confirm a left leaning SCOTUS justice, which is probably what their constituents want them to do when they were elected. So why not just vote and get the political damage over with? Are they that afraid of losing? ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [April 2, 2016, 5:18pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/102 "2016-04-02T17:18:45Z")
> [@Bone](#): > > You’re not getting it. The absence of a hearing on Garland is the method by which they are fulfilling their legislative responsibilities. They are denying Obama the ability to confirm a left leaning SCOTUS justice, which is probably what their constituents want them to do when they were elected. There are more ways of doing their job than sitting in a chamber and voting. Like sitting on a chamber pot and not voting? Constituents ‘probably’ wanted that? How’s that logic go? There are way more ways of not doing their job. They’re going to explore every one apparently. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 2, 2016, 5:23pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/103 "2016-04-02T17:23:41Z")
The logic goes like this - [ul][li]Scalia was a conservative[/li][li]Scalia should be replaced by a conservative[/li][li]Obama isn’t going to nominate a conservative[/li][li]Therefore there aren’t going to be any hearings.[/ul][/li]Regards, Shodan ---
**Author:** ![Chessic\_Sense](https://avatars.discourse-cdn.com/v4/letter/c/7c8e57/32.png) [@Chessic\_Sense](https://boards.straightdope.com/u/Chessic_Sense)\ **Post date:** [April 2, 2016, 5:52pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/104 "2016-04-02T17:52:08Z")
So are we not even going to consider the OP’s scenario? Are we just going to talk about why the Senate is doing what it’s doing, and whether Obama could nominate someone they’d approve of? What’s any of that to do with the OP/Slate/Yale suggestion? Look, the Constitution says this: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” It doesn’t say anything about what advising and consenting is. There’s no mention of confirmation, no mention of votes or hearings. That’s not required. The Senate does not appoint, the President appoints. The sentences reads, essentially, “The President shall nominate and shall appoint Judges.” Garland can show up to the Court if Obama appoints him. **Bricker** cannot, because Obama wouldn’t have appointed him. Only one sentence prior, the Constitution says this: “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.” Now _that_ statement provides for a vote or some sort! It says the same thing about advice and consent, but also tags the end of the sentence with “provided 2/3 concur.” There’s nothing like that in the appointment clause. So can someone tell me why, Constitutionally speaking, Obama couldn’t say “I appoint Garland, with the advice and consent of the Senate” and Garland couldn’t show up to work the next day? Who could say he was wrong? By what practical mechanism? ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [April 2, 2016, 6:00pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/105 "2016-04-02T18:00:33Z")
> [@doorhinge](#): > > The Yale law review essay tries to make the case that if a President is being stymied by Congress, the President should ignore the U.S. Constitution, and the U.S. Senate, and proceed however they see fit. Wrong. The essay wants to make the case that if the Senate doesn’t vote one way or the other, that means they consent, and the nominee should be appointed, not because the President sees fit, but because the Senate tacitly does so. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [April 2, 2016, 6:10pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/106 "2016-04-02T18:10:20Z")
> [@Chessic\_Sense](#): > > So can someone tell me why, Constitutionally speaking, Obama couldn’t say “I appoint Garland, with the advice and consent of the Senate” and Garland couldn’t show up to work the next day? Who could say he was wrong? By what practical mechanism? Over 200 years of precedence. That has never been the way it works. ---
**Author:** ![Fiddle\_Peghead](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fiddle_peghead/32/3506_2.png) [@Fiddle\_Peghead](https://boards.straightdope.com/u/Fiddle_Peghead)\ **Post date:** [April 2, 2016, 6:36pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/107 "2016-04-02T18:36:27Z")
> [@Bone](#): > > You’re not getting it. The absence of a hearing on Garland is the method by which they are fulfilling their legislative responsibilities. They are denying Obama the ability to confirm a left leaning SCOTUS justice, which is probably what their constituents want them to do when they were elected. There are more ways of doing their job than sitting in a chamber and voting. I must seriously ask if you forgot to include :rolleyes: on this post. They simply hold a vote, and vote no. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 2, 2016, 6:55pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/108 "2016-04-02T18:55:11Z")
> [@Fiddle\_Peghead](#): > > I must seriously ask if you forgot to include :rolleyes: on this post. They simply hold a vote, and vote no. Right or wrong, they have done the political calculus and have determined that, politically, it’s better for them to not hold hearings at all. I don’t fully understand it, but I can’t see any other explanation. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 2, 2016, 7:16pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/109 "2016-04-02T19:16:49Z")
> [@Shodan](#): > > The logic goes like this - > [ul][li]Scalia was a conservative[/li][li]Scalia should be replaced by a conservative[/li][li]Obama isn’t going to nominate a conservative[/li][li]Therefore there aren’t going to be any hearings.[/ul][/li]Regards, > Shodan Bwahahaahaha! ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [April 2, 2016, 8:04pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/110 "2016-04-02T20:04:13Z")
> [@drad\_dog](#): > > Like sitting on a chamber pot and not voting? > > Constituents ‘probably’ wanted that? How’s that logic go? > > There are way more ways of not doing their job. They’re going to explore every one apparently. Oh, I must have left off the quote. Silly me. > [@YogSothoth](#): > > Democrats know that if you don’t control the presidency, you can’t simply block a nominee because he’s not liberal. We do our jobs unlike the extremist GOP. And even if we don’t like him, we’ll give him a fair hearing, again unlike the extremist GOP. > [@Wisconsin orders arrest of missing Democrats. Legal?](https://boards.straightdope.com/t/wisconsin-orders-arrest-of-missing-democrats-legal/573396/51): > > You’re not getting it. Their absence is the method by which they are fulfilling their legislative responsibilities. They are denying the Republicans the ability to pass an anti-union bill, which is probably what their constituents want them to do when they were elected. There are more ways of legislating than sitting in a chamber and voting. > [@Bone](#): > > You’re not getting it. The absence of a hearing on Garland is the method by which they are fulfilling their legislative responsibilities. They are denying Obama the ability to confirm a left leaning SCOTUS justice, which is probably what their constituents want them to do when they were elected. There are more ways of doing their job than sitting in a chamber and voting. Parody, no? ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 2, 2016, 8:06pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/111 "2016-04-02T20:06:27Z")
> [@John\_Mace](#): > > Right or wrong, they have done the political calculus and have determined that, politically, it’s better for them to not hold hearings at all. I don’t fully understand it, but I can’t see any other explanation. How about the explanation that it isn’t the result of doing any sort of calculus at all, but only of conditioned reflexive opposition? They’ve blundered into the trap they’ve set for themselves, thinking they were setting it for Obama, and are now trying to blunder their way out of it. ---
**Author:** ![Starving\_Artist](https://avatars.discourse-cdn.com/v4/letter/s/aeb1de/32.png) [@Starving\_Artist](https://boards.straightdope.com/u/Starving_Artist)\ **Post date:** [April 3, 2016, 7:40am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/112 "2016-04-03T07:40:54Z")
> [@YogSothoth](#): > > Democrats know that if you don’t control the presidency, you can’t simply block a nominee because he’s not liberal. We do our jobs unlike the extremist GOP. And even if we don’t like him, we’ll give him a fair hearing… You mean like you did with Robert Bork? Here’s Ted Kennedy in a nationally televised speech made 45 minutes after Bork’s nomination: > [@](#): > > Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens. According to [this Wikipedia article](https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination), even Bork’s video rental history was dug up and leaked to the press. And, having had his nomination rejected in committee by a 9-5 vote, Bork insisted that there should be a debate and full vote in the Senate. Two Democrats voted in his favor. ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 3, 2016, 7:47am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/113 "2016-04-03T07:47:43Z")
> [@ElvisL1ves](#): > > How about the explanation that it isn’t the result of doing any sort of calculus at all, but only of conditioned reflexive opposition? They’ve blundered into the trap they’ve set for themselves, thinking they were setting it for Obama, and are now trying to blunder their way out of it. I want to take this post out to a nice seafood dinner, marry it. and have its babies. That cool? The Senate’s decision to refuse Gardland just further represents the gigantic schism fracturing the Republican Party. Large sections of their representatives are blinded by obstructionism and stubbornness. To clarify, I think those things do have place in a Republican system, but, as a whole, the Republican Party has allow/accepted/fostered so much anti-government rhetoric that obstructionism and stubbornness are no longer tempered by reason. Honestly, Obama’s play to nominate should have been expected (I am a long time lurker and I remember someone even stating that Obama should nominate a moderate). The longer this goes on, the worse it makes the Republicans look. The fact that they didn’t/don’t see that or that they think the political capital of not accepting Garland is worth the possibility of a Republican President displays a breathtaking lack of political reason. For one, this early in the stage, a Republican president not even close to certain. Given the political chaos of the Republican Primaries that should be obvious to any Republican, especially a Senator. Second, they’re setting up a dangerous precedent that the Democrats could use against them in the future when they don’t control the Senate. They walked straight into a fire and are now trying to not get burned. As to the **OP’s** original post, I doubt Garland would ever just sit down as Justice. It’s not the smart political move. The Republicans are hanging themselves. Why would he cut the rope? Him accepting the position, especially with the argument of tacit consent, would open his nomination and, in general, the Democrats, open to attack. The problem is that this is such a complicated issue. It clearly involves a Constitutional question, but the Supreme Court can’t hear the case because it’s also a political question (that directly involves the Court). Add to that the fact that it directly involves an essential branch of the government and I think it’s best if Garland just lets the Senate suffer from its self-inflicted wound. I do think it would be amazing if, as another poster mentioned, if Garland started posting his own opinions. I don’t think they would have any legal weight, but it would keep the issue at the forefront. It could backfire though, so I doubt he’d do it. > [@](#): > > Over 200 years of precedence. That has never been the way it works. Well, to be fair, I’m pretty sure there’s no precedent for what the Senate is doing now. Blocking the President from nominating a Justice by repeatedly rejecting all his nominees by a vote has precedent; blocking him by refusing to even call a vote (or even a Judiciary Committee), to my knowledge, is not. > [@](#): > > And, having had his nomination rejected in committee by a 9-5 vote, Bork insisted that there should be a debate and full vote in the Senate. Two Democrats voted in his favor. Well, at least he got a shot. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 3, 2016, 12:07pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/114 "2016-04-03T12:07:11Z")
> [@Arrogantly\_Ignorant](#): > > I want to take this post out to a nice seafood dinner, marry it. and have its babies. That cool? New sig line cool. Thanks! > [@](#): > > The Senate’s decision to refuse Gardland Just McConnell’s and a large fraction of his caucus. We don’t know what The Senate would decide because he’s not \*allowing \*The Senate to decide. ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 3, 2016, 1:07pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/115 "2016-04-03T13:07:43Z")
> [@ElvisL1ves](#): > > New sig line cool. Thanks! Haha. No problem. > [@](#): > > Just McConnell’s and a large fraction of his caucus. We don’t know what The Senate would decide because he’s not \*allowing \*The Senate to decide. This begs the question: I wonder exactly how many Senators McConnell has on his side. Yes, there’s a Republican majority, but that doesn’t mean they’re all completely behind him. He’s on shaky ground. Hell, even the Democrats disapproved of FDR’s plan to pack the Court even after he had won in a major landslide (he only lost two states, Maine and Vermont). They argued that if they packed the Court then the other party would do the same when given the opportunity and the Court would become a political battleground. While McConnell’s actions aren’t as severe, he’s still setting a dangerous precedent. I think/hope that a sizable portion of Republican Senators will understand the potential ramifications. They’re essentially wielding a weapon they’ll eventually have to hand over to the Democrats. Extremely short-sighted. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 3, 2016, 2:38pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/116 "2016-04-03T14:38:44Z")
> [@ElvisL1ves](#): > > How about the explanation that it isn’t the result of doing any sort of calculus at all, but only of conditioned reflexive opposition? They’ve blundered into the trap they’ve set for themselves, thinking they were setting it for Obama, and are now trying to blunder their way out of it. Yeah, Obama tricked those Republicans by nominating someone much more conservative than he otherwise would have. So if HRC or Bernie wins in November, they admit defeat and confirm him. What a coup for Obama, getting a much more conservative justice on the court than he normally would want, than HRC would normally want, and than Bernie would normally want. If the Republicans win in November, then they keep the lid on the confirmation process until after inauguration day. ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 3, 2016, 3:13pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/117 "2016-04-03T15:13:07Z")
> [@John\_Mace](#): > > Yeah, Obama tricked those Republicans by nominating someone much more conservative than he otherwise would have. So if HRC or Bernie wins in November, they admit defeat and confirm him. What a coup for Obama, getting a much more conservative justice on the court than he normally would want, than HRC would normally want, and than Bernie would normally want. If the Republicans win in November, then they keep the lid on the confirmation process until after inauguration day. That’s assuming Obama doesn’t withdraw his nomination before they get the opportunity to do that. Or that McConnell and his fellow Senators will follow sound political strategy over ideology and/or not wanting to back down. Those are two big assumptions. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [April 3, 2016, 3:32pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/118 "2016-04-03T15:32:52Z")
> [@John\_Mace](#): > > Yeah, Obama tricked those Republicans by nominating someone much more conservative than he otherwise would have. So if HRC or Bernie wins in November, they admit defeat and confirm him. If no vote has been taken, the nomination will be withdrawn sometime around election day. At that point, it is entirely appropriate to leave the nomination for the next President. And you forgot the scenario where the Democrats take the new Senate, and spend two weeks approving every liberal nomination Obama can shovel at them. 🙂 ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 3, 2016, 5:09pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/119 "2016-04-03T17:09:52Z")
> [@Frank](#): > > If no vote has been taken, the nomination will be withdrawn sometime around election day. At that point, it is entirely appropriate to leave the nomination for the next President. > > And you forgot the scenario where the Democrats take the new Senate, and spend two weeks approving every liberal nomination Obama can shovel at them. 🙂 Oh, it’s definitely true that it’s not over until the fat lady sings, and I was really just outlining one possible scenario. But for this to play out that way, the Republicans need to make this obstructionism NOT about Garland, so that if Obama withdraws him, then one can make the argument that his nomination was a political stunt. If they reject Garland now, they open the door for Obama to nominate someone else, who will likely be “less conservative”. This might be why we hear so much these days about “the Biden Rule”, which isn’t a rule, of course, but it’s something similar Biden came up with that says the nomination process should be on hold during campaign season. Once the season is over, then the process can get started again. True, some GOP types will have to backtrack and look hypocritical if they take this route, but it’s still better than the alternative, if they lose the election and face HRC or Bernie as the next president. I don’t think any of us knows how this is all actually going to play out, but it’s not checkmate yet, and the fat lady is still just warming up with her vocal scales backstage. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [April 3, 2016, 8:32pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/120 "2016-04-03T20:32:09Z")
> [@Arrogantly\_Ignorant](#): > > … > Well, to be fair, I’m pretty sure there’s no precedent for what the Senate is doing now. Blocking the President from nominating a Justice by repeatedly rejecting all his nominees by a vote has precedent; blocking him by refusing to even call a vote (or even a Judiciary Committee), to my knowledge, is not. > … There is precedent. It’s been more than 100 years, but there is precedent. John Tyler had an awful time getting SCOTUS nominees approved due to Senate intransigence. A nomination would get stonewalled and so Tyler would withdraw a name and submit another. When that nominee ran into the same roadblock he withdrew name #2 and resubmitted name #1. The Senate refused to vote on nominee #1 because a Senator objected that the Senate, despite not voting on nominee #1 the first time, had already done its duty by rejecting said nominee. The Wikipedia article just doesn’t do it full justice. Nominations for candidates #3 and #4 were tabled, never to be acted on again. No vote to reject. Tyler had nine such nominations fail, counting repeated nominations of the same candidate. His two successful nominations followed vacancies of 424 and 835 days, respectively. [Previous page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=5) [Next page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=7)