*President Obama has nominated Merrick B. Garland to be his nominee to replace Justice Scalia.
*Senate Majority Leader Mitch McConnell has doubled down on his promise to not consider any nominee from President Obama for this position.
What are President Obama’s legal options? A recess appointment? Leave the GOP dangling and let the Democrats run hard against the GOP on “obstructionist” and related charges, which appear to finally be gaining traction, at least in “blue” states (witness the 8 or so senators who have decided to meet with Garland)? Something else?
It does appear that the public overwhelmingly thinks President Obama’s nominee—who is supposedly centrist and well-respected by many in the GOP—should be given fair consideration. Cite. I suspect this support will increase as Garland’s qualifications are made known.
I’d prefer this discussion not diverge into another round of arguing about McConnell’s and other leading GOP senators’ decision to not consider any nominee. We’ve been around and around that issue, and whether it has precedent, whether Democrats or Republicans are being hypocrites, etc. Please, no more of that for this thread, at least.
What is Obama’s long game, here? What really are his options, legally speaking?
His long game is to put the R’s between a rock and a hard place, and he’s doing that, pretty well. I’ll bet his advisors are chortling into their beers at this point.
As for legal options, it’s in the Senate’s hands at this point. Once he’s made the nomination, it’s up to them to schedule (or not) hearings and a vote. After that, about the only thing Obama can do is make another nomination.
But whatever way it goes, if they don’t confirm Garland, whether because of delay until Hillary is President or because they voted No, all that’s left is for him (or Hillary) to make another nomination.
His long game is obvious, but it’s hard to call it a “long game” given that it runs out this November:
[list=#]
[li]Propose a middle-of-the-road nominee who is so inoffensive there can’t possibly be any real objections to them.[/li][li]Watch the Senate Republicans foot-bullet by stolidly refusing to even consider this bit of milk toast. This being the year of Trump, Cruz, and Kasich, they’re obviously standing downrange of a punt gun so their reaction is a foregone conclusion.[/li][li]Stand aside and let the media attack them for you. Make a few funny speeches CNN and John Oliver can excerpt which play up how high your approval ratings are and how stupid it is for the Senate Republicans to do precisely what you knew they’d do.[/li][li]Hope Clinton has long coattails and can get a solid majority in the Senate to put a real progressive on the court. A young progressive, to maximize the legacy of this iteration of the GOP’s utter fecklessness and Bartleby-esque obstinence in refusing to participate in running the government.[/li][/list]
It’s very, very easy for the Senate to block a recess appointment. All the majority has to do is have a senator in town once every three days to tap the gavel (such as in this session which lasted about 35 seconds).
I think his “long game” has a few prongs: 1. Obama has undoubtedly talked at length with Garland. I think it’s very likely that Garland has a judicial philosophy and approach that Obama finds acceptable, appropriate, and admirable. Even if he appears to be a moderate, and might be less exciting and motivating to liberal voters, I think it’s likely that he’d be a very good justice in line with Obama’s desires for the Supreme Court. 2. With Garland’s near-universal admiration and moderate reputation, he is by far the most likely nominee that could force the Republicans to cave from their intransigency and hold a hearing and a vote (and actually confirm him). If this happened, the base would go absolutely nuts – Trump and Cruz would clean up in the aftermath, and the convention would be even more of a shit show. McConnell and Grassley might even get booed off the stage. Third party hard-right candidates to challenge GOP Senators might pop up en masse against anyone who voted to confirm Garland.
So if they hold to their refusal and don’t hold hearings for Garland, then they get hammered for months by the media and Democratic opponents. If they give in, they get hammered by a frothing-mad base, which could be even more destructive to the GOP. A strong liberal-appearing pick would only enable the first possibility, since they’d never give in.
I think the long game is that Obama realizes he has very little chance of getting any nominee anything resembling a fair hearing or vote. So, the nomination is aimed at making the GOP pay the maximum amount for their intransigence. This nomination makes it very clear that this is just politics on the Republican side*.
They’ll start having shadow hearings in the next month or so where Republicans won’t show up (though the empty seats will be reserved for them, and be visible for the cameras) and the Democrats will lob soft ball questions at him for hours; he will look extremely reasonable and centrist, and no one will be there to challenge that notion.
If they manage to get actual hearings and a vote, they can live with him as a justice because even if he isn’t a liberal, he is way more liberal than Scalia. If they don’t manage to get it, the Republicans are going to pay a huge price, and likely for nothing if they don’t win the presidency. Hell, even if Trump is president, do you think that the Republican establishment will have much say in his nomination? They are in a no win situation that they put themselves into.
*The fact that some Republicans are now saying that they would consider the nominee specifically during the lame duck session between the election and the new president completely undoes their argument that this is about letting the voters have a say.
Obama has a free play here. Since it is nearly impossible to find someone to Scalia’s right, no matter who replaces him will be more of a moderate and inch the court leftward. He could have nominated a solid liberal, but that would allow Republicans to oppose the choice on principle and the Republican base would be fine with blocking it. So he gives the opposition two choices- confirm a moderate and piss off your base, or refuse to consider and endanger your more vulnerable Senators and virtually guarantee a Democratic majority next year.
I think the pick is brilliant. Either he gets confirmed and the court inches leftward, or Hillary chooses someone even more liberal and the court moves left more quickly. Plus there’s a good chance she will get to nominate at least 2-3 more justices, so along with the 2 that Obama has already picked then Roe is safe for a generation.
I think that’s the most interesting side of this. If Hillary wins, then there will be a weird sort of race-condition on whether the Senate can confirm before Obama withdraws the nomination. Not really sure what the mechanics involved are.
Plus, from Obama’s side of things, its kinda dick to make Garland go through this and than withdraw his nomination right before he’s about to get confirmed. Presumably they’ve discussed the possibility and agreed on what happens, so its not impossible Obama will just let the lame-duck Senate confirm Garland.
Whatever would happen, I have no doubt Clinton was closely involved in the planning of it. The last thing Obama would want to do is to flout the wishes of a Democratic President-Elect. And she may well be satisfied with Garland herself.
As for making Garland go through with what could be a mockery, he really doesn’t have a downside. He already lives in Washington, so no life changes there. He’s going to continue to be Chief Judge of the DC Circuit right up until his confirmation, so no loss there. He may not even have to take a day off for a hearing. It’s all good.
I get that this is a chance to make the Senate Republicans look shamelessly obstructionist. But I’m not convinced that will make a difference in the election. Shouldn’t the Democrats have already won over anyone who had a problem with Republican obstructionism?
Are there really voters out there saying “The last eight years of constant obstruction I can overlook, but this is one step too far!” :dubious:
Yes, Obama or Garland can withdraw Garland’s nomination at any time for any reason or no reason. If the nomination is still in progress when the new President is sworn in, the nomination is automatically cancelled at that moment. Garland’s nomination could of course be re-entered by the new Prez or that new Prez could pick somebody else.
I’m sure there are some. There are also many people who pay surprisingly little attention to politics, and still haven’t necessarily heard the arguments on the Supreme Court nomination… but will, if Dems are allowed to hammer the issue through the summer and fall.