WaPo: Three Pinocchios for declaring Senate’s “constitutional duty” to vote on Garland

posted at 5:41 pm on March 16, 2016 by Ed Morrissey

How often does someone get pre-emptive Pinocchios? Barack Obama got three of them today in his speech regarding the nomination of Merrick Garland to the Supreme Court. Obama offered a pre-emptive argument of his own, accusing Republicans of “an abdication of their constitutional duty” if they refused to give Garland’s nomination a hearing and a floor vote:

At a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they’re disposable — this is precisely the time when we should play it straight, and treat the process of appointing a Supreme Court justice with the seriousness and care it deserves.  Because our Supreme Court really is unique.  It’s supposed to be above politics.  It has to be.  And it should stay that way.

To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise — that would be unprecedented.

To suggest that someone who has served his country with honor and dignity, with a distinguished track record of delivering justice for the American people, might be treated, as one Republican leader stated, as a political “piñata” — that can’t be right.

Tomorrow, Judge Garland will travel to the Hill to begin meeting with senators, one-on-one.  I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote.  If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair.  It will mean everything is subject to the most partisan of politics — everything.  It will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any President, Democrat or Republican, to carry out their constitutional function.  The reputation of the Supreme Court will inevitably suffer.  Faith in our justice system will inevitably suffer.  Our democracy will ultimately suffer, as well.

I have fulfilled my constitutional duty.  Now it’s time for the Senate to do theirs.  Presidents do not stop working in the final year of their term.  Neither should a senator.

Glenn Kessler must have been amused … or frustrated. Hours before the identity of Obama’s pick was made known, Kessler had expertly dissected and discarded the notion of a Senate “duty” to provide a floor vote for a Supreme Court nomination, especially in an election year. In fact, Kessler in his fact check discovered that the precedent runs opposite, and goes back 200 years:

In August 1828, Justice Robert Trimble died just as President John Quincy Adams was battling a tough reelection campaign against Democrat Andrew Jackson. Adams ended up losing to Jackson, but in December nominated Kentucky lawyer John Crittenden to replace Trimble. (Recall that before passage of the 20th Amendment in 1933,  the presidential inauguration did not take place until March.)

Supporters of Jackson opposed this lame-duck nomination, leading to a debate of nine days on the floor of the Senate. Supporters of Adams’s maneuver argued that it was a duty of the president to fill vacant slots, even in the waning days of a presidency. They offered an amendment on the floor:

“That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.”

But this amendment was rejected in a voice vote and then the Senate voted 23-17 to adopt an amendment saying “that it is not expedient to act upon the nomination of John I. Crittenden.” … According to the Congressional Research Service, “By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.”

In giving the claim of “constitutional duty” three Pinocchios, Kessler called claims to the contrary a “fairy tale”:

Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination. In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered. … Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

The political environment might still influence that decision, of course, but it’s unlikely to change so much that Obama will get a hearing for Garland. (Allahpundit disagrees.) Republicans have made this the sine qua non of Obama opposition, so they have effectively painted themselves into a corner on the issue. A few might give Garland a meeting in order to protect their individual electoral chances, but the chances of Garland getting a Judiciary hearing or a floor vote are nil.

Even if the nominee was a Scalia-style conservative, they would have difficulty budging — and Garland is far from that kind of jurist. Ed Whelan assessed Garland in 2010, and revisits it today:

I’m surprised to see that some folks are misconstruing my favorable comparisons of D.C. Circuit judge Merrick Garland to fellow candidates Elena Kagan and Diane Wood as some sort of endorsement of Garland. I think that I have always been careful to couch my assessment of Garland in the context of severely limiting phrases like (in the links above) “Of the candidates being mentioned to fill the Stevens vacancy” and “[what] conservatives could reasonably hope for from a Democratic president.”

In case it’s somehow not clear enough, I’ll emphasize that I have zero illusions that a Justice Garland would help move the Court in the right direction in undoing the damage of decades of liberal judicial activism. I merely have reasonable hopes that he’d move more slowly than the other leading candidates in compounding the damage.

For what it’s worth, I’d bet my bottom dollar that Garland would vote to uphold the constitutionality of Obamacare, including the individual mandate. In sum, if it were up to me, Garland wouldn’t remotely be a candidate for the Supreme Court. But, alas, it’s not. Of the candidates that President Obama might plausibly nominate to the Court, all the others strike me as markedly worse than Garland.

That’s not the kind of candidate that will move the needles of Chuck Grassley and Mitch McConnell. And those are the two Senate Republicans who matter most on this issue.

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