# 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:** 24
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [April 8, 2016, 9:29pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/461 "2016-04-08T21:29:06Z")
> [@Johnny\_Ace](#): > > Blah di blah bloo bloo. > > You should work for a tabloid…I’m sure you could drum up some _fantastic_ fabrications. I won’t award you two warnings in a row. But I certainly could here. Don’t imply that other posters are lying in any way. ---
**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:** [April 8, 2016, 9:39pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/462 "2016-04-08T21:39:30Z")
> [@Jonathan\_Chance](#): > > It is specifically against the rules to state that another poster is deriving any sexual gratification from his or her posts. > > Warning issued. Please don’t do it again. Mea culpa. It really wasn’t meant literally. Man, I’m collecting more points than I have in decades on my driver’s license. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 8, 2016, 9:45pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/463 "2016-04-08T21:45:35Z")
> [@doorhinge](#): > > _Otter: Dead! Bluto’s right. Psychotic… but absolutely right. We gotta take these bastards. Now we could do it with conventional weapons, but that could take years and cost millions of lives. No, I think we have to go all out. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!_ . . . Nah. Won’t work. We can’t take that approach here. The Senate Pubs have pre-empted it. ---
**Author:** ![ShadowFacts](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shadowfacts/32/2934_2.png) [@ShadowFacts](https://boards.straightdope.com/u/ShadowFacts)\ **Post date:** [April 9, 2016, 7:16pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/464 "2016-04-09T19:16:35Z")
[In this Washington Post opinion piece](https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?wpmm=1&wpisrc=nl_opinions), a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. [QUOTE=Gregory Diskant] It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right …(snip)… Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution …(snip)… It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function. [/QUOTE] ---
**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 9, 2016, 7:28pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/465 "2016-04-09T19:28:41Z")
> [@Johnny\_Ace](#): > > Mea culpa. It really wasn’t meant literally. > > Man, I’m collecting more points than I have in decades on my driver’s license. I think you’re on double secret probation now dude ---
**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:** [April 9, 2016, 7:43pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/466 "2016-04-09T19:43:17Z")
> [@ShadowFacts](#): > > [In this Washington Post opinion piece](https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?wpmm=1&wpisrc=nl_opinions), a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. I suspect that Garland would refuse to be appointed in that circumstance. ---
**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:** [April 9, 2016, 11:11pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/467 "2016-04-09T23:11:05Z")
> [@drad\_dog](#): > > I think you’re on double secret probation now dude The time has come for someone to put his foot down. And that foot is me. ---
**Author:** ![Esox\_Lucius](https://avatars.discourse-cdn.com/v4/letter/e/848f3c/32.png) [@Esox\_Lucius](https://boards.straightdope.com/u/Esox_Lucius)\ **Post date:** [April 9, 2016, 11:24pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/468 "2016-04-09T23:24:29Z")
> [@ShadowFacts](#): > > [In this Washington Post opinion piece](https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?wpmm=1&wpisrc=nl_opinions), a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. > [@DSeid](#): > > I suspect that Garland would refuse to be appointed in that circumstance. Mostly that, plus it would also give the GOP another chance to scream “Unconstitutional”, “Dictator!”, “He parks in handicapped spots!” or whatever that could tip some undecideds toward voting Republican. It’s better leaving the ball in the GOP’s court for now and giving them a chance to screw up again. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 10, 2016, 4:06am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/469 "2016-04-10T04:06:29Z")
Actually, if the President can claim that right, the Chief Justice can claim the right to deny Garland a seat. What’s Obama gonna do, sue? ---
**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 10, 2016, 4:35am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/470 "2016-04-10T04:35:28Z")
> [@adaher](#): > > Actually, if the President can claim that right, the Chief Justice can claim the right to deny Garland a seat. What’s Obama gonna do, sue? No but he’s commander in chief. He might have priority in the use of forces. OK scholars, go to it… ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 10, 2016, 5:33am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/471 "2016-04-10T05:33:47Z")
Each branch has primary authority over its own membership. Congress decides who sits in Congress and the President(for the most part) decides who is in his administration. The Supreme Court has so far not claimed such a power, but it would be logically consistent for the judicial branch to have similar authority, especially if the other two branches have not agreed to a nomination. Roberts could just say, “As Chief Justice, I decide who can and can’t sit on this court in the absence of a clear constitutional procedure. And I say nay.” ---
**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:** [April 10, 2016, 5:43am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/472 "2016-04-10T05:43:35Z")
I don’t care which Justice or group of them it is, I’d be willing to bet that none of them would want to allow the precedent of a President denying the Senate its Constitutionally-bestowed power. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 10, 2016, 8:28am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/473 "2016-04-10T08:28:18Z")
Quick question: were all those lower court judges that never got a vote under the Bush administration, were their nominations ever officially withdrawn? Seems to me that if we’re going to play the “novel interpretation of the Constitution” game that the Republican Senate could simply vote to approve all the Bush judges that never got a vote and seat them. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 10, 2016, 9:11am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/474 "2016-04-10T09:11:50Z")
The writer of that article must also be forgetting the the Supreme Court only a couple of years ago voided OBama’s NLRB appointments that bypassed the Senate. And those were recess appointments. The odds that SCOTUS would allow the PResident to appoint a Supreme Court Justice without advice and consent are very low indeed. Their NLRB decision was unanimous. ---
**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 10, 2016, 10:59am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/475 "2016-04-10T10:59:07Z")
> [@adaher](#): > > Quick question: were all those lower court judges that never got a vote under the Bush administration, were their nominations ever officially withdrawn? Seems to me that if we’re going to play the “novel interpretation of the Constitution” game that the Republican Senate could simply vote to approve all the Bush judges that never got a vote and seat them. Those nominations were returned to the President as not acted upon pursuant to [Senate Rule XXXI, Section 6](http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI). No further action will be taken unless the nominee is again submitted by the President. > [@](#): > > 1. Nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President; and if the Senate shall adjourn or take a recess for more than thirty days, all nominations pending and not finally acted upon at the time of taking such adjournment or recess shall be returned by the Secretary to the President, and shall not again be considered unless they shall again be made to the Senate by the President. ---
**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 10, 2016, 11:04am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/476 "2016-04-10T11:04:03Z")
> [@ShadowFacts](#): > > [In this Washington Post opinion piece](https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?wpmm=1&wpisrc=nl_opinions), a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. The problem with that theory is that such method was explicitly considered and rejected by the Framers of the Constitution. Any such effort would be roundly rejected by the High Court, assuming they would take up a case and not merely escort Garland out of the building. And the mere suggestion makes me wonder how the author of that opinion piece ever managed to clerk for the Supreme Court and why the Washington Post would ever publish such an opinion piece which supports a patently unconstitutional approach. ---
**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:** [April 10, 2016, 11:18am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/477 "2016-04-10T11:18:54Z")
Not going to happen – either the pressure will build until the Senate relents and holds a hearing, or it won’t, and Garland won’t get the opening. ---
**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 10, 2016, 3:24pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/478 "2016-04-10T15:24:31Z")
> [@ShadowFacts](#): > > [In this Washington Post opinion piece](https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?wpmm=1&wpisrc=nl_opinions), a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. [Been there, done that.](http://boards.straightdope.com/sdmb/showthread.php?t=788908) I imagine the Chief Justice Roberts would have him removed from the building. Then what? Does Obama send in the National Guard? ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [April 10, 2016, 3:28pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/479 "2016-04-10T15:28:32Z")
> [@](#): > > Originally Posted by ShadowFacts > In this Washington Post opinion piece, a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent. Also not going to happen because Obama isn’t that keen on getting Garland on the Court. If it happens, fine, but his main goal was to help the Republicans look like assholes. Mission accomplished. ---
**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:** [April 11, 2016, 2:07pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/480 "2016-04-11T14:07:05Z")
> [@Iggy](#): > > And the mere suggestion makes me wonder how the author of that opinion piece ever managed to clerk for the Supreme Court and why the Washington Post would ever publish such an opinion piece which supports a patently unconstitutional approach. It’s not “patently unconstitutional” at all, just novel. The customary requirement for active consent is no more or less obvious a reading than one in which a lack of action is deemed tacit consent. Tradition and custom dictate that explicit consent is required, but they also dictate that the Senate must act on a nomination (and yes, I am aware of the five prior instances in which they did not). [Previous page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=23) [Next page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=25)