# 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:** 12
**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, 3:41pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/221 "2016-03-17T15:41:57Z")
> [@Lightnin](#): > > I don’t know- is there? Do you have the relevant passages in the Constitution I could peruse? Article 1, Section 5. > [@](#): > > 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? I see a problem with the President emptying federal prisons by pardoning everyone convicted of a federal offense, but I wouldn’t call it unconstitutional. I see a problem with the President pardoning _himself_, and don’t figure the FF wanted that, but can’t bring myself to say that’d be unconstitutional either. Constututional scholars seem divided on whether a guy barred from getting elected back into the presidency could get there via succession, which IMHO presumably wasn’t what they wanted but which IMHO is what they wrote. And so on. You can of course opine that a stupid ramification seems to follow from loopholes that maybe weren’t intended – but AFAICT unintended loopholes can exist, and stupid ramifications can follow, and noting it doesn’t make it go away. ---
**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, 3:49pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/222 "2016-03-17T15:49:48Z")
> [@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? I’m assuming the spirit of the Constitution (and the obvious implications of language with regards to the words “advice” and “consent”), along with tradition and practice, clearly demonstrate this, but I’ll wait for legal expert input. ---
**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, 3:54pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/223 "2016-03-17T15:54:22Z")
> [@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. No, it doesn’t imply active participation. It makes it clear that the President and U.S. Senate must work together to actually appoint a Supreme but does not require the U.S. Senate to rubberstamp a Presidential nominee. The U.S. Senate makes of it’s own rules. The U.S. Senate Judiciary Committee was created by the U.S. Senate to act on behalf of the U.S. Senate. ---
**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, 4:00pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/224 "2016-03-17T16:00:41Z")
> [@iiandyiiii](#): > > I’m assuming the spirit of the Constitution (and the obvious implications of language with regards to the words “advice” and “consent”), along with tradition and practice, clearly demonstrate this, but I’ll wait for legal expert input. From whom? Which one are you waiting for? Plenty of people on this board have concluded and conceded that it is within the power of the Senate to not hold hearings if they don’t want to. There is no cite that will say there is a legal requirement to hold hearings. [Washington Post:](https://www.washingtonpost.com/news/fact-checker/wp/2016/03/16/does-the-senate-have-a-constitutional-responsibility-to-consider-a-supreme-court-nomination/) > [@](#): > > It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale. ---
**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, 4:00pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/225 "2016-03-17T16:00:45Z")
> [@doorhinge](#): > > The U.S. Senate makes of it’s own rules. The U.S. Senate Judiciary Committee was created by the U.S. Senate to act on behalf of the U.S. Senate. Can you show us where that is in Senate rules? The committees of the Senate are for determining what legislation and nominees are submitted for consideration. Nowhere does it say they speak for the Senate without a vote. ---
**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, 4:07pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/226 "2016-03-17T16:07:05Z")
> [@DSeid](#): > > And they [_may_ already be backing down](http://talkingpointsmemo.com/livewire/grassley-to-meet-with-garland), realizing that backing down now is their least poor option. Grassley meets with Garland. _Howya doin’ Chuck. Hi Merrick. How you doin’? Good. How’s the wife and kids? Good, how’s yours? Great. Nice talkin’ to ya. Ya, nice talkin’ to you too. See ya later. So long._ ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [March 17, 2016, 4:07pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/227 "2016-03-17T16:07:20Z")
> **[Merrick Garland](https://en.wikipedia.org/wiki/Merrick_Garland)** > > Merrick Brian Garland (born November 13, 1952) is an American lawyer and jurist serving since March 2021 as the 86th United States attorney general. He previously served as a U.S. circuit judge of the U.S. Court of Appeals for the District of Columbia Circuit from 1997 to 2021. > A native of the Chicago area, Garland attended Harvard University for his undergraduate and legal education. After serving as a law clerk to Judge Henry J. Friendly of the Court of Appeals for the Second Circuit and Su... [http://www.cnn.com/2016/03/16/politics/who-is-merrick-garland/index.html](http://www.cnn.com/2016/03/16/politics/who-is-merrick-garland/index.html) Chief Judge Garland is by all accounts able, bright and well-respected, and would be an asset to SCOTUS. I hope the Senate will hold hearings and ultimately confirm him, but the GOP majority seems to have made the crass political calculation that it’s more important to keep their base happy by sitting on their hands than by actually considering the nominee on his merits. If the Dems take the Senate in November, perhaps Garland can still be confirmed between the new Senate convening in early January and Obama leaving office on Jan. 20. ---
**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, 4:08pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/228 "2016-03-17T16:08:34Z")
> [@doorhinge](#): > > No, it doesn’t imply active participation. It makes it clear that the President and U.S. Senate must work together to actually appoint a Supreme but does not require the U.S. Senate to rubberstamp a Presidential nominee. Who’s asking the Senate to rubberstamp Obama’s nominee? 😕 Consent can be withheld, or else it’s not really consent, but I can’t see how refusing categorically to even consider an appointment is anything but an utter failure to advise. Advice on a treaty is “It’s good” or “It’s got issues: A, B, C. You should head back to the negotiating table.” Advice on an appointment is “this guy’s good” or “this guy’s got issues: X, Y, and Z. Try a different person.” The Republican Senators figuratively folding their arms across their chests like a bad Mussolini newsreel isn’t giving the President advice but a middle finger. ---
**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, 4:09pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/229 "2016-03-17T16:09:11Z")
> [@Bone](#): > > From whom? Which one are you waiting for? Plenty of people on this board have concluded and conceded that it is within the power of the Senate to not hold hearings if they don’t want to. There is no cite that will say there is a legal requirement to hold hearings. > > [Washington Post:](https://www.washingtonpost.com/news/fact-checker/wp/2016/03/16/does-the-senate-have-a-constitutional-responsibility-to-consider-a-supreme-court-nomination/) I don’t deny this at all – the Senate will get away with, in terms of not being held responsible by the justice system, not holding a hearing if the leaders so choose. My point is purely on the opinion side, and the kind of legal-expert-input I’m wondering about is whether such language (along with practice and tradition) is considered to mandate (without an enforcement mechanism), as far as anything can mandate a group of people like the Senate to do, that the Senate hold hearings and a confirmation vote. Basically, according to legal experts, is it reasonable to say “if the Senate leadership intends to never hold hearings or a confirmation vote for Garland, then they are intending to abrogate their Constitutional responsibility”? ---
**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, 4:15pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/230 "2016-03-17T16:15:04Z")
> [@Bone](#): > > From whom? Which one are you waiting for? Plenty of people on this board have concluded and conceded that it is within the power of the Senate to not hold hearings if they don’t want to. There is no cite that will say there is a legal requirement to hold hearings. > > [Washington Post:](https://www.washingtonpost.com/news/fact-checker/wp/2016/03/16/does-the-senate-have-a-constitutional-responsibility-to-consider-a-supreme-court-nomination/) Have you noticed how much of the GOP’s strategy of late appears to be to do anything to avoid doing their jobs? Why do you keep defending this strategy? ---
**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, 4:25pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/231 "2016-03-17T16:25:09Z")
Semi-factual question: could a Democratic Senator keep moving for a hearing on the nomination every day the Senate is in session? I know the motions would be denied, but is the nomination in a place according to Senate rules (or generic parliamentary rules) where such a motion can be made on the floor of the Senate by an ordinary (that is, not Judiciary Committee member) Senator? Because I would love to see the GOP leadership\* in the Senate forced to say “no” to holding a hearing on the nomination formally and on the record (including copious CSPAN footage) as often as possible. 🆒 \*As in the guys in charge, not necessarily actually engaging in leadership. :rolleyes: ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [March 17, 2016, 4:37pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/232 "2016-03-17T16:37:37Z")
> [@John\_Bredin](#): > > Semi-factual question: could a Democratic Senator keep moving for a hearing on the nomination every day the Senate is in session? I know the motions would be denied, but is the nomination in a place according to Senate rules (or generic parliamentary rules) where such a motion can be made on the floor of the Senate by an ordinary (that is, not Judiciary Committee member) Senator? > > Because I would love to see the GOP leadership\* in the Senate forced to say “no” to holding a hearing on the nomination formally and on the record (including copious CSPAN footage) as often as possible. 🆒 > > \*As in the guys in charge, not necessarily actually engaging in leadership. :rolleyes: Nice idea, but it occurs to me that such a motion would be better proposed in the Judiciary Committee than in the full Senate. So, while such a tactic might discomfit Sen. Grassley, Sen. McConnell will still, unfortunately, be insulated from such fallout. ---
**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, 4:43pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/233 "2016-03-17T16:43:56Z")
> [@Bone](#): > > From whom? Which one are you waiting for? Plenty of people on this board have concluded and conceded that it is within the power of the Senate to not hold hearings if they don’t want to. There is no cite that will say there is a legal requirement to hold hearings. > > [Washington Post:](https://www.washingtonpost.com/news/fact-checker/wp/2016/03/16/does-the-senate-have-a-constitutional-responsibility-to-consider-a-supreme-court-nomination/) I’ll concede that it’s not a legal requirement. But I do think it’s an neglecting their responsibilities and not living up to their duty to their country–they should respect the process and go through the motions, even if they vote “no”. ---
**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, 4:44pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/234 "2016-03-17T16:44:45Z")
> [@kaylasdad99](#): > > Nice idea, but it occurs to me that such a motion would be better proposed in the Judiciary Committee than in the full Senate. Yes, but (a) how often does the Committee meet? (b) there’s a certain “Mr. Smith Goes to Washington” feel to having an ordinary Senator make the motion on the floor of the Senate. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [March 17, 2016, 4:46pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/235 "2016-03-17T16:46:44Z")
> [@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”. Since you objected to any discussion of Senate GOP obstructionism before Obama had actually nominated anyone, it’s rather disingenuous for you to argue based on an act that requires legislation that has not even been suggested, much less introduced. ---
**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, 4:53pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/236 "2016-03-17T16:53:12Z")
> [@Lightnin](#): > > I don’t know- is there? Do you have the relevant passages in the Constitution I could peruse? Article One, Section 5, Clause 2: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” ---
**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, 4:53pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/237 "2016-03-17T16:53:34Z")
> [@Bricker](#): > > He wanted the circuit to rehear the case. That means he wanted to change the panel decision. > > Or he wanted the precedent to be a full ruling for the circuit instead of a panel. > > Or he wanted different language in the circuit’s opinion while retaining the result, language that would have weakened the right. > > Or he wanted different language in the circuit’s opinion while retaining the result, language that would have strengthened the right. > > In other words, you have no idea what motivated his vote. > > I have spent four years in the “Voter ID,” thread arguing against the unprincipled idea that we can discern homogenous malign motives from simple legislative votes. The same principle applies here, only more so. There are a kajillion reasons to vote to rehear a case en banc. > > I fully support the reasoning and results in Heller and MacDonald. But I don’t support this weak inferential assassination trick, no matter how it is wielded or against who. I’ll readily concede there are many reasons to hear an appeal. The authors of the two articles concluded that Garland wanted to rehear the case because he wanted to change the panel decision. They both suggest/imply that Garland does not accept the fact that the U.S. Bill of Rights is the U.S. Bill of (Individual) Rights. The articles seem well written and were not the usual cut-and-paste opinions that usually circulate on the internet. I wouldn’t consider these articles to be inferential assassination tricks but educated opinions. And they were written before Garland was nominated by Obama. I understand I’m only asking for your opinion, but based on what you know of Merrick B. Garlands judicial rulings, how do you believe Garland would have decided Heller? Specifically, to the best of your ability, does Garland hold that the 2nd Amendment is an individual right, or is it a right only enjoyed by government militias? ---
**Author:** ![Johnny\_Ace](https://avatars.discourse-cdn.com/v4/letter/j/6bbea6/32.png) [@Johnny\_Ace](https://boards.straightdope.com/u/Johnny_Ace)\ **Post date:** [March 17, 2016, 4:56pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/238 "2016-03-17T16:56:11Z")
> [@Lightnin](#): > > Does the Constitution say anything about the position of Majority Whip? 'Cause it’s not \*Senate \*that’s refusing to even consider doing the job the Constitution says they have- it’s _one guy_. At least five Republican Senators have said that they’d be willing to go through the vetting procedure, but Mitch McConnell isn’t letting the Senate do its job. > > It’s kind of bullshit to hide behind the Constitution like this, don’t you think? It’s not just McConnell, there’s a coalition now that’s going to do its utmost to continue the standard Republican stonewall. It remains to be seen whether voters will finally get fed up enough with it to rebuke them. The only ones buying his argument are those who’ve already drunk the GOP Kool-Aid. No one else is. This is the perfect storm; the GOP is sounding its own death knell, trying desperately to get back to the way things were before the Donald blew everything up. Good luck with that. ---
**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, 4:57pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/239 "2016-03-17T16:57:49Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Since you objected to any discussion of Senate GOP obstructionism before Obama had actually nominated anyone, it’s rather disingenuous for you to argue based on an act that requires legislation that has not even been suggested, much less introduced. I didn’t object to your discussing anything. (Why do Democrats insist on telling people what to think or what they can say? :smack: ) Obama needed to provide a nominee. Them’s the rules. Some people may have forgotten that. ---
**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, 5:00pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/240 "2016-03-17T17:00:22Z")
Josh Marshall at TPM [suggests](http://talkingpointsmemo.com/edblog/the-importance-of-the-three-nos) that the “no meetings, no hearing, no vote” strategy is already showing serious signs of cracking after just the first day of the nomination. If GOP Senators are already agreeing to meet with Garland, after so long of saying they never would meet with a nominee, how long will it be before they decide to hold a hearing? [Previous page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=11) [Next page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=13)