Maybe this is better posted in great debates, but I’m actually looking for something that would be considered a factual answer. When McConnell stonewalled the nomination of Garland for the SCOTUS, he did it by refusing to bring the nomination to the floor for a vote. Was there anything that Obama could have done that would have legally moved that nomination forward? Was there anything that any of the senators could have done?
Short of using his “immunity” to have Seal Team Six pay a visit to a meeting of the Republican Senate Conference, Obama didn’t have any options. All he could really do was highlight the political norms that McConnell was shattering. But, as we soon found out, at least half the voting public doesn’t care about norms anymore.
There were a few things mooted.
One was simply appointing him and saying he sought the advice and consent of the Senate but that the Senate didn’t act, and thus consented. This would likely have been unsuccessful, but it’s not entirely clear at what point of the process or how it would have been thwarted. It was deemed too risky by the rather conservative Obama administration.
Some discussion of that is here: Constitution Check: Could Obama bypass the Senate on Garland nomination? | Constitution Center
A recess appointment was also a possibility, but I believe Obama had already been shut down by SCOTUS about a different recess appointment he made, so that was a non-starter.
No. Well, McConnell could have. But he didn’t.
Within the rules and precedents of the Senate, there was no way to force the nomination forward. The Republicans had a 54-46 majority, and the Majority Leader has sole authority to decide whether and when a measure will be brought to the floor. There is no Senate procedure akin to the discharge petition in the House where a majority can force leadership to take up a measure they don’t want to (and such a procedure would have been useless anyway, as Republicans were solidly behind McConnell on blocking Garland).
The only question was whether there were other ways Obama and Senate Democrats could have made it politically painful enough for Republicans to relent on their blockade, but that’s not Factual Questions territory.
It had been Senate practice since W’s Administration to hold pro-forma sessions every three days to block the President from making recess appointments. Obama challenged this by making several appointments during a Senate “recess,” arguing that the Senate was effectively recessed despite the pro-forma sessions. The Supreme Court unanimously rejected that argument in National Labor Relations Board v. Noel Canning.
Moderator Note
Let’s keep the politically charged commentary out of FQ, please.
Has a Democrat-controlled senate every been in a position to do this to a sitting Republican president? I assume it has never happened, but was there even an opportunity where it could have happened?
I don’t see any reason why a Democrat-controlled senate wouldn’t so the same thing to a a Republican president that was done to Obama if it ever gets the chance. The gloves are now off.
It’s called the Biden Rule for a reason.
I think it depends on what you mean by “this.” The Senate routinely and commonly fails to act on presidential nominations (there’s a reason they have a rule specifying that nominations that are still pending at the end of a session are returned to the President).
The last time the Senate failed to act on a Supreme Court nomination was John Harlan in 1954 (he was re-nominated and confirmed early in the next Congress). The same happened to William Hornblower in 1893 (re-nominated and then rejected) and Stanley Matthews in 1881 (re-nominated by the new president and confirmed). Two of these involved sitting Republican presidents, but I don’t know what the Senate control was.
The so-called “Biden Rule” is Republican-manufactured bullshit to justify their own incalcitrance. This “rule” was just Joe pontificating about a hypothetical vacancy.
To answer @dolphinboy ’s question, the last time a Democratic Senate considered a Republican President’s Supreme Court nominee was Clarence Thomas in 1991. This was also the last time any President had their SC nominee approved by an opposition Senate.
And here’s a fun fact: the last Democratic President who had a Supreme Court Justice approved by a Republican-majority Senate was Grover Cleveland!
But the vast majority of Supreme Court nominations in our history have occurred when the same party controls both the Presidency and the Senate.
No one calls it that in good faith.
(A) Biden’s remarks were in June,1992 versus what McConnell did in March of election year.
(B) It was a hypothetical after several divisive nominations in previous years (Bork, Thomas).
(C) there was not vacancy or nomination at the time, suggesting by logical timelines, any such senate action would happen in August or later before a November election should a Justice resign or bite the big one…
So if one were to take its suggestion at face value, the “Biden rule” would apply to, say, July 1st as a cut-off date.
Not quite.
In 1968, when Chief Justice Earl Warren announced that he was retiring, LBJ nominated associate justice Abe Fortas to be Chief Justice, and nominated Homer Thornberry to be the new Associate Justice.
The Senate successfully filibustered those appointments, and it ended up being Richard Nixon was replaced the Chief Justice, with Warren Burger.
Thornebrry never made it to the high court, and Fortas never made it to the role of Chief Justice, and neither recorded a confirmation vote.
Technically, the most recent non-Garland Supreme Court nomination that the Senate failed to act on was Harriet Miers. W nominated her on October 3, 2005, and withdrew her nomination three weeks later allegedly at her request, with the Senate having taken no action on her confirmation (not even a Judiciary Committee hearing). This was because it was patently obvious to everyone on both sides of the aisle that she was grossly unqualified for the position.
And just as a bit of trivia: the President to have the most Supreme Court nominations rejected or ignored by the Senate was John Tyler who had EIGHT nominations denied.