# Obama nominates Judge Merrick Garland to the SCOTUS. **URL:** \ **Category:** Politics & Elections\ **Created:** [March 16, 2016, 2:13pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160 "2016-03-16T14:13:26Z")\ **Posts on this page:** 20\ **Page:** 11
**Author:** ![Dinsdale](https://avatars.discourse-cdn.com/v4/letter/d/97f17d/32.png) [@Dinsdale](https://boards.straightdope.com/u/Dinsdale)\ **Post date:** [March 17, 2016, 2:30pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/201 "2016-03-17T14:30:54Z")
> [@crucible](#): > > Time to chill the champagne. Damn, I hate hearing things like that. I remember hearing favorable early returns one November back in 2004 as we drove towards an election night party hosted by our liberal friends, only to have the rug yanked out from under us soon after we arrived. The lesson I learned was to never underestimate the capability of the American electorate to fuck up a no-brainer! ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [March 17, 2016, 2:30pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/202 "2016-03-17T14:30:55Z")
> [@Richard\_Parker](#): > > The Supreme Court is the one institution with the power to move us past constitutional crises that could blow apart our political system—from a presidential election thrown into chaos to congress exercising some kind of unprecedented power in a national emergency. Its power to do this does not come from its control of an army or its power over spending. It comes from one place: its credibility. > > The Court’s credibility is ebbing, as it is increasingly considered just another place for partisan politics. It used to be an institution as well-respected as the military. Now the military is roughly twice as respected. That’s a bad trend for a democratic country. Meanwhile, the importance of the Court as bulwark of constitutional stability is more important than ever. The chances of a constitutional crisis escalate with every passing year, as we witness the consequences of the two parties becoming ideological poles. I don’t think there’s any hope on that score, based on present trends. The court itself inserted itself into a political role, in using its power to force social and political change on the nation. I think the biggest step was the Warren Court, though there may have other other instances which preceded it. Once the court became an instrument to advance political/ideological goals, it was inevitable that nominations and confirmations would be driven by these types of considerations. (Here, I think the Bork fight was probably the most dramatic instance, and one which set the tone for all that came after.) ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [March 17, 2016, 2:34pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/203 "2016-03-17T14:34:06Z")
> [@The\_Other\_Waldo\_Pepper](#): > > There’s a lot of stuff that various people can’t do without my consent. That doesn’t mean I have to give them my consent; it means they have to get my consent before they proceed. I can – and _do_ – refuse to give that consent every day, without fail, while breaking no law; how is this any different? Well, for one, your relationship with everyone else in the world is not defined in the US Constitution. ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [March 17, 2016, 2:39pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/204 "2016-03-17T14:39:53Z")
The argument is that “advice and consent” implies active participation. They could have a vote and vote no, and that’d be fine. But a lot of senators may well want to consent but are being denied the opportunity by the senate leadership. The “senate” in the constitution doesn’t refer to the Judiciary Committee. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 17, 2016, 2:42pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/205 "2016-03-17T14:42:39Z")
> [@Fear\_Itself](#): > > Well, for one, your relationship with everyone else in the world is not defined in the US Constitution. No, the role of the President is, and the role of the Senate is: it defines the role of the President as Don’t Do This Without The Consent Of The Senate, and it defines the role of the Senate as – what? By law, there are things you can’t do without my consent. By law, I don’t have to consent to such things; in fact, I am right now not so consenting. By law, there are things the President can’t do without the consent of the Senate. By law, the Senate doesn’t have to consent to such things. It seems you’re absolutely correct that one of those is defined by the Constitution. It also seems to be absolutely irrelevant. ---
**Author:** ![iiandyiiii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iiandyiiii/32/7924_2.png) [@iiandyiiii](https://boards.straightdope.com/u/iiandyiiii)\ **Post date:** [March 17, 2016, 2:46pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/206 "2016-03-17T14:46:05Z")
> [@The\_Other\_Waldo\_Pepper](#): > > I don’t see how that follows. > > It says the President can’t do it without the advice and consent of the Senate. It says nothing about whether the Senate must provide advice and consent. > > There’s a lot of stuff that various people can’t do without my consent. That doesn’t mean I have to give them my consent; it means they have to get my consent before they proceed. I can – and _do_ – refuse to give that consent every day, without fail, while breaking no law; how is this any different? That seems like a pretty weak use of legalese, but I’ll defer to any legal experts. Doesn’t the “shall” imply that the Senate must advise and consent (or advise and choose not to consent) to any nominations? ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 17, 2016, 2:50pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/207 "2016-03-17T14:50:12Z")
> [@MandaJo](#): > > The argument is that “advice and consent” implies active participation. They could have a vote and vote no, and that’d be fine. But a lot of senators may well want to consent but are being denied the opportunity by the senate leadership. The “senate” in the constitution doesn’t refer to the Judiciary Committee. Doesn’t the Constitution specify that the Senate can set its own rules? Something about procedures or proceedings or whatever? Isn’t that pretty much why they unobjectionably do stuff in committees and subcommittees the rest of the time? ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 17, 2016, 2:53pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/208 "2016-03-17T14:53:15Z")
> [@iiandyiiii](#): > > That seems like a pretty weak use of legalese, but I’ll defer to any legal experts. Doesn’t the “shall” imply that the Senate must advise and consent (or advise and choose not to consent) to any nominations? Well, look, I’ll of course defer to expert legal opinion likewise, but it strikes me as odd that you start off by arguing that it implies they must advise and consent – and then immediately say it’s okay if they advise and choose _not_ to consent. If you’re willing to jettison the part where they must consent, why aren’t you just as willing to jettison the part where they must advise? ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [March 17, 2016, 2:54pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/209 "2016-03-17T14:54:30Z")
> [@The\_Other\_Waldo\_Pepper](#): > > No, the role of the President is, and the role of the Senate is: it defines the role of the President as Don’t Do This Without The Consent Of The Senate, and it defines the role of the Senate as – what? > > By law, there are things you can’t do without my consent. By law, I don’t have to consent to such things; in fact, I am right now not so consenting. By law, there are things the President can’t do without the consent of the Senate. By law, the Senate doesn’t have to consent to such things. It seems you’re absolutely correct that one of those is defined by the Constitution. It also seems to be absolutely irrelevant. Again, it’s not the Senate that’s doing all of this- it’s _one guy_, a guy whose job didn’t even exist until 1899. You’re trying to hide behind a technicality in the Constitution, but technically, McConnell has no Constitutional right to do what he’s doing. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 17, 2016, 2:59pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/210 "2016-03-17T14:59:45Z")
> [@Lightnin](#): > > Again, it’s not the Senate that’s doing all of this- it’s _one guy_, a guy whose job didn’t even exist until 1899. You’re trying to hide behind a technicality in the Constitution, but technically, McConnell has no Constitutional right to do what he’s doing. Like I said, though, isn’t there a The-Senate-Can-Set-Its-Own-Rules thing? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 17, 2016, 3:00pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/211 "2016-03-17T15:00:29Z")
> [@Fotheringay-Phipps](#): > > I The court itself inserted itself into a political role, in using its power to force social and political change on the nation. I think the biggest step was the Warren Court . . . :rolleyes: There is indeed a problem there, but it is not at all what you think it is. You – and everyone else taking any slightest interest in this thread – really, really need to read [this](http://www.amazon.com/Injustices-Comforting-Comfortable-Afflicting-Afflicted/dp/1568584563/ref=sr_1_1?s=books&ie=UTF8&qid=1458226770&sr=1-1&keywords=injustices). ---
**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:** [March 17, 2016, 3:03pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/212 "2016-03-17T15:03:10Z")
> [@Fotheringay-Phipps](#): > > I don’t think there’s any hope on that score, based on present trends. > > The court itself inserted itself into a political role, in using its power to force social and political change on the nation. I think the biggest step was the Warren Court, though there may have other other instances which preceded it. Once the court became an instrument to advance political/ideological goals, it was inevitable that nominations and confirmations would be driven by these types of considerations. (Here, I think the Bork fight was probably the most dramatic instance, and one which set the tone for all that came after.) Yes and no. I’m not sure there’s a neutral criterion that would mark the Warren Court as a break with tradition in terms of the Supreme Court’s involvement in social and political change. Throughout its history, the Supreme Court has not shied away from ruling on hop-topic political issues. It was central to disputes over the First and Second Bank of the United States, which was probably the most important political issue other than slavery in the first century of the country. And Taney thought that _Dred Scott_ might ward of civil war. True _Brown v. Board_ marked a change in its considering of social science evidence. But even that was more an evolution than a breakpoint, and if anything, the Rehnquist and Roberts courts have had a successful counter-revolution on that (_McCleskey v. Kemp_, for example). That said, it is also obviously true that there is a trade-off between involvement in sensitive political topics and credibility as a neutral arbitrator. I think Roberts gets that, and it partly explains his role in _King v. Burwell_. After _Bush v. Gore_, _Citizens United_, and _D.C. v. Heller_, Roberts might have been genuinely concerned about the court’s credibility capital. I think Obama may feel some personal responsibility for making the situation worse. He certainly hasn’t shied away from making Supreme Court decisions into partisan political issues. That’s part of why I think he might feel some obligation to try to step back from the brink. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [March 17, 2016, 3:10pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/213 "2016-03-17T15:10:59Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Like I said, though, isn’t there a The-Senate-Can-Set-Its-Own-Rules thing? I don’t know- is there? Do you have the relevant passages in the Constitution I could peruse? And do you think that the FF really wanted Senate to be able to indefinitely hold the judiciary hostage like this? Because according to your argument, the two parties could easily whittle down the judiciary to nothing, simply by refusing to ever even consider any future judges. Do you see a problem with this plan? ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [March 17, 2016, 3:20pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/214 "2016-03-17T15:20:23Z")
Personally I am just shaking my head that some of the GOP team (such as Hatch and Flake) are _already_ giving up the absurd cover story that it is about letting the people decide with the Presidential election and openly discussing the option of [approving in the lame duck session](http://www.nytimes.com/2016/03/17/us/politics/supreme-court-nomination-obama-congress.html?action=click&contentCollection=Politics&module=RelatedCoverage®ion=EndOfArticle&pgtype=article) rather than risk who a President Clinton might put up. If they do stay their course of let the people decide then I am not not so sure that they will have a Senate minority functionally cohesive enough to pull off a filibuster of a candidate younger than and slightly to the left of Gardner, obstructing what the people decided upon. No she wouldn’t put up Hippy Mcwhackadoodle. ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [March 17, 2016, 3:23pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/215 "2016-03-17T15:23:29Z")
> [@The\_Other\_Waldo\_Pepper](#): > > Well, look, I’ll of course defer to expert legal opinion likewise, but it strikes me as odd that you start off by arguing that it implies they must advise and consent – and then immediately say it’s okay if they advise and choose _not_ to consent. If you’re willing to jettison the part where they must consent, why aren’t you just as willing to jettison the part where they must advise? They don’t have to consent to any _particular_ pick, but the intent and expectation is obviously that appointments will eventually be made. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 17, 2016, 3:31pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/216 "2016-03-17T15:31:02Z")
> [@Peremensoe](#): > > They don’t have to consent to any _particular_ pick, but the intent and expectation is obviously that appointments will eventually be made. No, it isn’t obvious. It’s also possible that the number of Supremes could be reduced from 9 to 8 or to 7, before a Supreme is chosen. Key word being “possible”. ---
**Author:** ![Lightnin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lightnin/32/180_2.png) [@Lightnin](https://boards.straightdope.com/u/Lightnin)\ **Post date:** [March 17, 2016, 3:34pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/217 "2016-03-17T15:34:48Z")
> [@doorhinge](#): > > No, it isn’t obvious. It’s also possible that the number of Supremes could be reduced from 9 to 8 or to 7, before a Supreme is chosen. Key word being “possible”. But as I pointed out, there’s no need to stop _there_. The GOP’s gambit could virtually abolish the SC. All it would take is for the Dems to say, “We’re not going to consider anyone \*you \*put up, either.” I’m no Constitutional scholar, mind you, but I’m pretty sure that’s not what was intended. ---
**Author:** ![John\_Bredin](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@John\_Bredin](https://boards.straightdope.com/u/John_Bredin)\ **Post date:** [March 17, 2016, 3:36pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/218 "2016-03-17T15:36:02Z")
> [@John\_Mace](#): > > Think of him more as a Steward than a president. He’s holding the place until the real president is elected in the fall. No, I shan’t think of President Obama as steward, because he’s [checks that this isn’t the Pit] bloody-well not. There may be such an office in Gondor, but not under the Constitution of the United States. :rolleyes: Several clauses in the Constitution address someone not elected to be President (usually the Vice-President) acting as President. There are none about the duly-elected President merely acting as President. :smack: When, do you suggest, did Obama cease being President and assume this fictional office of Steward? 😕 ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 17, 2016, 3:36pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/219 "2016-03-17T15:36:29Z")
> [@Lightnin](#): > > I don’t know- is there? Do you have the relevant passages in the Constitution I could peruse? > > And do you think that the FF really wanted Senate to be able to indefinitely hold the judiciary hostage like this? Because according to your argument, the two parties could easily whittle down the judiciary to nothing, simply by refusing to ever even consider any future judges. Do you see a problem with this plan? Did you forget the will of the voters? Did you forget that U.S. Senators and Presidents are elected? The FF didn’t. The voters can elect, reelect, or unelect a President and every member of the U.S. Congress. If they chose to play stupid games, they can win stupid prizes. ---
**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:** [March 17, 2016, 3:41pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/220 "2016-03-17T15:41:18Z")
> [@Richard\_Parker](#): > > I think Obama may feel some personal responsibility for making the situation worse. He certainly hasn’t shied away from making Supreme Court decisions into partisan political issues. That’s part of why I think he might feel some obligation to try to step back from the brink. I know this is just conjecture, but I really don’t think this is a significant motivator for Obama. It’s not consistent with any other action and if he genuinely felt this way he could exhibit it in many many ways including a nominee that was right leaning (yeah right!) If he wanted to mark some shift this certainly isn’t it. [Previous page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=10) [Next page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=12)