# 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:** 25
**Author:** ![jsc1953](https://avatars.discourse-cdn.com/v4/letter/j/5daacb/32.png) [@jsc1953](https://boards.straightdope.com/u/jsc1953)\ **Post date:** [April 11, 2016, 3:22pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/481 "2016-04-11T15:22:15Z")
> [@John\_Mace](#): > > [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? The Constitution only names 2 parties in the process of appointing Supreme Court justices: the president and the Senate. Nowhere does it say that the sitting justices have any voice whatsoever as to who joins their ranks. So this “tacit approval” approach is a stretch, but not totally outrageous. Giving the Chief Justice some sort of gate-keeper authority is just making stuff up. ---
**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 11, 2016, 6:02pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/482 "2016-04-11T18:02:59Z")
> [@jsc1953](#): > > The Constitution only names 2 parties in the process of appointing Supreme Court justices: the president and the Senate. Nowhere does it say that the sitting justices have any voice whatsoever as to who joins their ranks. > > So this “tacit approval” approach is a stretch, but not totally outrageous. Giving the Chief Justice some sort of gate-keeper authority is just making stuff up. How fast do you think the Republicans would file a lawsuit reversing such an action? Which would end up in front of the SC. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 11, 2016, 6:06pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/483 "2016-04-11T18:06:04Z")
> [@Iggy](#): > > The problem with that theory is that such method was explicitly considered and rejected by the Framers of the Constitution. That’s not mentioned in the Constitution. Is it mentioned in _The Federalist?_ ---
**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 11, 2016, 6:50pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/484 "2016-04-11T18:50:16Z")
> [@Johnny\_Ace](#): > > How fast do you think the Republicans would file a lawsuit reversing such an action? Which would end up in front of the SC. Well there would be a countersuit from the democrats, just as compelling or more so. And they would both end up in the same place. ---
**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 11, 2016, 7:17pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/485 "2016-04-11T19:17:35Z")
> [@drad\_dog](#): > > Well there would be a countersuit from the democrats, just as compelling or more so. And they would both end up in the same place. I’m not sure how compelling it could be, considering it’s asking the court to abridge a power given the Senate in the Constitution. I doubt that there’s a statute of limitations on it. ---
**Author:** ![jsc1953](https://avatars.discourse-cdn.com/v4/letter/j/5daacb/32.png) [@jsc1953](https://boards.straightdope.com/u/jsc1953)\ **Post date:** [April 11, 2016, 7:17pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/486 "2016-04-11T19:17:57Z")
> [@Johnny\_Ace](#): > > How fast do you think the Republicans would file a lawsuit reversing such an action? Which would end up in front of the SC. Well, there are 2 paths to the SC. One: a party with standing (such as the Senate) files suit, and it makes it way to the SC. Both sides present their case; the full court rules, and precedent is established, possibly defining what “advise and consent” actually means. Two: John Roberts stands outside the SC building with a clipboard, saying “I don’t see your name on the list.” One gives me a little more faith in our institutions. ---
**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 11, 2016, 8:45pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/487 "2016-04-11T20:45:12Z")
> [@BrainGlutton](#): > > That’s not mentioned in the Constitution. Is it mentioned in _The Federalist?_ I’ve posted this link several times. Note, it was written LONG before the current morass. [TOWARD THE FRAMERS’ UNDERSTANDING OF “ADVICE AND CONSENT”: A HISTORICAL AND TEXTUAL INQUIRY by ADAM J. WHITE\*](http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf) (pdf link) in short, Alexander Hamilton wrote about his idea for Senatorial veto in the Federalist Papers. But the Founders went for the current system based upon the proposal by Nathaniel Gorham. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 12, 2016, 7:15am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/488 "2016-04-12T07:15:41Z")
> [@jsc1953](#): > > The Constitution only names 2 parties in the process of appointing Supreme Court justices: the president and the Senate. Nowhere does it say that the sitting justices have any voice whatsoever as to who joins their ranks. > > So this “tacit approval” approach is a stretch, but not totally outrageous. Giving the Chief Justice some sort of gate-keeper authority is just making stuff up. Like the concept of judicial review, it’s assumed because of the nature of seperation of powers. Congress has the power to determine who sits in Congress. The executive has the power to determine the makeup of his inner circle(Cabinet members have to be approved by Congress since the posts are created by Congress in the first place). Is the judicial branch unique in this respect? In any case, it’s irrelevant, because all the Chief Justice has to do is say that Garland was not properly confirmed and has no right to sit on the court. Much as with the President doing things Congress thinks are illegal, the primary recourse is impeachment. Which Republicans in Congress won’t do to Roberts, so Roberts basically has the privilege to assert any power he wishes. ---
**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 12, 2016, 5:04pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/489 "2016-04-12T17:04:53Z")
> [@adaher](#): > > Like the concept of judicial review, it’s assumed because of the nature of seperation of powers. Congress has the power to determine who sits in Congress. Can you clarify this? Voters get to decide who sits in Congress, right? For instance, Congress can’t say “The representative you elected sucks baboon balls, so we’re choosing someone else.” Were you talking about some procedural aspect or something? > [@](#): > > Is the judicial branch unique in this respect? Absolutely. Judges aren’t (usually) popularly voted on, the Supreme Court definitely isn’t. Per the Constitution, both the President and Congress select and approve Justices. There’s no mention of SCOTUS (or, specifically, the Chief Justice) having any such authority. > [@](#): > > In any case, it’s irrelevant, because all the Chief Justice has to do is say that Garland was not properly confirmed and has no right to sit on the court. I think you believe the Chief Justice has more power than he actually does. The CJ has a few extra privileges/responsibilities, but it’s not like he’s the President of SCOTUS and the other Justices are his cabinet members. Point of fact, the Chief Justice can’t just unilaterally decide what you propose. First, there would have to be a case involving the issue. Second, all the other Justices would have to either agree or disagree with his decision. Given the current make-up of the Court, a 4-4 decision would not be unexpected. And around the circle we go. Of course, the Court will/would never take the case because of the political question doctrine. > [@](#): > > Roberts basically has the privilege to assert any power he wishes. I would hope Roberts would have more respect for the Constitution and his position not to get involved in an issue where he quite clearly has no legitimate authority. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 12, 2016, 10:27pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/490 "2016-04-12T22:27:21Z")
> [@Arrogantly\_Ignorant](#): > > Can you clarify this? Voters get to decide who sits in Congress, right? For instance, Congress can’t say “The representative you elected sucks baboon balls, so we’re choosing someone else.” Were you talking about some procedural aspect or something? . . . Well, by a two-thirds majority, the House (and I think the Senate) can [expel a member.](https://en.wikipedia.org/wiki/Expulsion_from_the_United_States_Congress) Historically, 15 Senators and 5 members of the House have, in fact, been expelled. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [April 12, 2016, 10:39pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/491 "2016-04-12T22:39:12Z")
> [@Trinopus](#): > > Well, by a two-thirds majority, the House (and I think the Senate) can [expel a member.](https://en.wikipedia.org/wiki/Expulsion_from_the_United_States_Congress) > > Historically, 15 Senators and 5 members of the House have, in fact, been expelled. Did their parents have to enroll them in private congress? ---
**Author:** ![oft\_wears\_hats](https://avatars.discourse-cdn.com/v4/letter/o/7993a0/32.png) [@oft\_wears\_hats](https://boards.straightdope.com/u/oft_wears_hats)\ **Post date:** [April 13, 2016, 12:24am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/492 "2016-04-13T00:24:24Z")
Not even a [delightful breakfast](https://www.washingtonpost.com/news/powerpost/wp/2016/04/12/former-aba-presidents-push-for-supreme-court-action-as-garland-continues-meetings-with-gop-senators/) could sway the steadfast Sen. Grassley. If such meetings continue and the Republicans eventually buckle, perhaps they will have created a new tradition: the confirmation hearing breakfast buffet. Maybe they’ll even add an omelet bar once Ginsburg retires one year into Hillary Clinton’s administration and they decide that the American people really want Paul Ryan to nominate her replacement in 2020. Seriously though, it’s really up to McConnell, isn’t it? Even if Grassley wants to hold the hearing, McConnell controls the schedule, so he can unilaterally decide not to schedule it, right? ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 13, 2016, 12:45am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/493 "2016-04-13T00:45:56Z")
The problem with Garland showing up on the first Monday in October is that the Senate did advise the President - Don’t nominate anyone. I suppose if the Senate gave a list of 5 nominees to the President and then didn’t act on the nomination if the President picked someone off the list then _maybe_ that would be tacit advice and consent - maybe. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 13, 2016, 1:43am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/494 "2016-04-13T01:43:37Z")
> [@Arrogantly\_Ignorant](#): > > Can you clarify this? Voters get to decide who sits in Congress, right? For instance, Congress can’t say “The representative you elected sucks baboon balls, so we’re choosing someone else.” Were you talking about some procedural aspect or something? Congress can expel members for ethics violations and refuse to seat members they judge improperly elected. > **[Expulsion from the United States Congress](https://en.wikipedia.org/wiki/Expulsion_from_the_United_States_Congress)** > > Expulsion is the most serious form of disciplinary action that can be taken against a member of Congress. The United States Constitution (Article I, Section 5, Clause 2) provides that "Each House \[of Congress\] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." The process for expulsion from the House of Representatives differs somewhat from the process for expulsion from the Senate. > Censure, a less sev... > **[Unseated members of the United States Congress](https://en.wikipedia.org/wiki/Unseated_members_of_the_United_States_Congress)** > > Both houses of the United States Congress have refused to seat new members based on Article I, Section 5 of the United States Constitution which states that: > "Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provi... > [@](#): > > I think you believe the Chief Justice has more power than he actually does. The CJ has a few extra privileges/responsibilities, but it’s not like he’s the President of SCOTUS and the other Justices are his cabinet members. Point of fact, the Chief Justice can’t just unilaterally decide what you propose. First, there would have to be a case involving the issue. Second, all the other Justices would have to either agree or disagree with his decision. Given the current make-up of the Court, a 4-4 decision would not be unexpected. And around the circle we go. Of course, the Court will/would never take the case because of the political question doctrine. John Marshall expanded the power of the court beyond its original mandate. It can be done again. > [@](#): > > I would hope Roberts would have more respect for the Constitution and his position not to get involved in an issue where he quite clearly has no legitimate authority. A nominee being seated without the approval of the Senate itself does violence to the Constitution. Also, the office of Chief Justice is limited mainly because it has never been necessary for the Chief Justice to establish himself as more of a leader than he currently is, at least not since JOhn Marshall. However, the Chief Justice is by law the head of the judicial branch: > **[Chief Justice of the United States](https://en.wikipedia.org/wiki/Chief_Justice_of_the_United_States)** > > The chief justice of the United States is the chief judge of the Supreme Court of the United States and is the highest-ranking officer of the U.S. federal judiciary. Article II, Section 2, Clause 2 of the U.S. Constitution grants plenary power to the president of the United States to nominate, and, with the advice and consent of the United States Senate, appoint "Judges of the supreme Court", who serve until they die, resign, retire, or are impeached and convicted. The existence of a chief just... In the case of a justice being sent to the court not properly confirmed, the Chief Justice can certainly assert the power to reject him, if for no other reason than that the President would have no practical recourse. The Senate could impeach him, but won’t, and the only place to seek a remedy is in the Supreme Court. And the problem there is that the Court already ruled unanimously just two years ago that the President cannot appoint anyone anywhere to a confirmable office without the Senate’s permission as long as it is in session. > **[High court rules against Obama on recess appointments](https://www.usatoday.com/story/news/politics/2014/06/26/supreme-court-obama-senate-appointments/8528059/)** > > Supreme Court dealt a blow to President Obama by striking down his recess appointments. Many nominees to other offices have been refused a vote. That did not give the President a right to deem them confirmed and I doubt the court would establish a precedent now. It would just be another humiliating court defeat for the administration for a nominee I don’t think the President cares that much about getting confirmed anyway. Which is precisely why the Senate should confirm him!😃 ---
**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 13, 2016, 2:19am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/495 "2016-04-13T02:19:37Z")
> [@Saint\_Cad](#): > > The problem with Garland showing up on the first Monday in October is that the Senate did advise the President - Don’t nominate anyone. I suppose if the Senate gave a list of 5 nominees to the President and then didn’t act on the nomination if the President picked someone off the list then _maybe_ that would be tacit advice and consent - maybe. The President followed his Constitutional duty, nominating a candidate in a timely manner. The Senate doesn’t have any force whatsoever in preventing that. Now, they’re shirking their duty. ---
**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 13, 2016, 3:13am UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/496 "2016-04-13T03:13:10Z")
> [@](#): > > Congress can expel members for ethics violations and refuse to seat members they judge improperly elected. > > [https://en.wikipedia.org/wiki/Expuls...tates\_Congress](https://en.wikipedia.org/wiki/Expuls...tates_Congress) > > [https://en.wikipedia.org/wiki/Unseat...tates\_Congress](https://en.wikipedia.org/wiki/Unseat...tates_Congress) Okay, but the were ousted by a majority of the Senate. Th Chief Justice isn’t the only member of SCOTUS and, as I said, even if the case was heard it would be a 4-4 split. > [@](#): > > John Marshall expanded the power of the court beyond its original mandate. It can be done again. That’s arguable, but I think you’re missing the point. Even _if_ he did so, he did it through exclusively through judicial opinions. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [April 13, 2016, 12:18pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/497 "2016-04-13T12:18:40Z")
Some things don’t require a judicial opinion though. If a crazy homeless guy walks into the Supreme Court and sits down, it doesn’t take a ruling to get him kicked out. The President simply does not get to appoint someone and seat him without Senate approval. Roberts can order security to remove him the same way he’d order any interloper removed. What it comes down to is the President doing exactly what you say ROberts can’t do, but it’s okay because he’s the President. The Chief Justice does not have to entertain such notions. Of course, he can choose to take a more formal role, especially since the precedent is established. The same court that ruled 9-0 that Obama can’t make NLRB appointments without Senate approval isn’t going to let him seat a Supreme Court Justice. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [April 13, 2016, 12:44pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/498 "2016-04-13T12:44:54Z")
> [@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. Do you have any numbers for those Bush nominees? [From last July:](http://www.politico.com/story/2015/07/payback-gop-blocks-obama-judge-picks-judiciary-119743) > [@](#): > > The GOP-controlled Senate is on track this year to confirm the fewest judges since 1969, a dramatic escalation of the long-running partisan feud over the ideological makeup of federal courts. > > The standoff, if it continues through the 2016 elections as expected, could diminish the stamp that President Barack Obama leaves on the judiciary — a less conspicuous but critical part of his legacy. Practically, the makeup of lower-level courts could directly affect a number of Obama’s policies expected to face legal challenges from conservatives. > > Republicans appear willing to absorb criticism that they’re interfering with the prerogative of a president to pick his nominees in the hope that the GOP can get its own judges installed in 2017, with one of their own in the White House. In the meantime, federal courts could be left with dozens of unfilled vacancies. More than two dozen federal courts have declared “ judicial emergencies” because of excessive caseloads caused by vacancies. Of course President Obama won’t try to “get around” the Republican obstructionism. Why should he, when it just makes Your Party look bad? You picked the wrong century to be a Republican. ---
**Author:** ![Claverhouse](https://avatars.discourse-cdn.com/v4/letter/c/13edae/32.png) [@Claverhouse](https://boards.straightdope.com/u/Claverhouse)\ **Post date:** [April 13, 2016, 12:57pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/499 "2016-04-13T12:57:40Z")
Without any interest: So, if as seems increasingly unlikely, there is a democratic presidency for the next 8 years, and as seems likely, the rabid Republicans hold on to the Senate during that time, continually refusing to seat any nominee from a Democratic president; and there’s some big Swine Flu epidemic that knocks over the old folks like ninepins… Can we expect that when the Court dwindles to three, and then to two, eventually There Can Be Only One ? ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [April 13, 2016, 2:44pm UTC](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160/500 "2016-04-13T14:44:16Z")
> [@Claverhouse](#): > > So, if as seems increasingly unlikely, there is a democratic presidency for the next 8 years, and as seems likely, the rabid Republicans hold on to the Senate during that time… I think you have your likelihoods switched up. [Previous page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=24) [Next page](https://boards.straightdope.com/t/obama-nominates-judge-merrick-garland-to-the-scotus/749160.md?page=26)