Did we discuss Merrick Garland in 2016?

Yes, we did.

So what did we have to say?

Here's our first entry:

Monday, March 14, 2016

Monday at the Bar: Down to three potential Supreme Court nominees

Rumor has it that President Obama is down to three potential Supreme Court nominees, those being Merrick Garland, Sri Srinivasan and Paul Watford.  All have been vetted successfully by the Republican Senate before.

While the Senate leadership has indicated that it intends to stick to its guns and refuse to consider any pick prior to the next President taking office it has to be the case that the election, which has taken an unpredicted and odd course, may start to change some minds.  Most Republican Senators are undoubtedly of the view that a Trump nomination will go down to defeat against Hillary Clinton in the fall and everyone is aware that a Clinton nominee will be much more liberal than any of these three.  Backing down on their pledge not to consider a nominee would look bad, but the impact would not be as bad as suffering with a liberal appointee in the next Congress.

Obviously, by that time, the Republican leadership in the Senate had already issued its pledge not to consider President Obama's nominee.  

A few weeks had passed, by that time, since Justice Scalia had died.  But it was only March and much of 2016 was left to go. Things were developing in the race, however, as our next entry pointed out.

Wednesday, March 16, 2016

Merrick Garland nominated to the Supreme Court

President Obama has nominated Merrick Garland, age 63, to the United States Supreme Court.

I don't know anything about Judge Garland, and indeed rarely do we know anything about a Supreme Court nominee prior to his nomination.  He apparently has a reputation as being a moderate to liberal Federal Judge.  He is a Harvard Law graduate (yet again) and he clerked for the legendary Judge Herbert J. Friendly prior to clerking for United States Supreme Court Justice William J. Brennan.  Brennan was a liberal Supreme Court Justice and we will likely be hearing about that if the confirmation process begins.

His remarkably older than recent nominees, which is interesting.  At age 63 this will be his one and only chance to make the Supreme Court.  He also has more experience, apparently, on the Federal bench than any other prior nominee.

Other than that, I can't comment much on him.  I would note that this is yet another instance of the Ivy League law schools having a seeming lock on the high court, which I don't think is a good thing, and its also another instance of the only people being considered being people who are currently sitting on the Federal bench in a lower appeals court.  Having said that, given the political dynamics in play, President Obama had to either nominate a sitting judge or a non controversial politician.  An attempt to do the latter seems to have been made with the vetting of Nevada's current governor, who declined to be considered.

On the politics of this, this now puts the Senate to the test.  If it declines to consider Garland it gambles on the Republican Party taking the Presidency, which is looking increasingly unlikely.  Garland is likely to be less liberal, maybe, than anyone Hillary Clinton, who is likely to be the Democratic nominee, may make.  Additionally, given the extreme contentiousness of the current political season there is some question, although only sum, on whether the GOP shall hold the Senate.  I think it likely that it will, but if it fails to then the next nominee will definitely be a more liberal judge. Indeed, it is not impossible that the next justice, under that scenario, could be President Obama, following in the footsteps of President Taft.

Of course, backing down from the pledge not to consider a nominee would have political consequences, the most likely one being that it would become fodder for the Trump campaign, which is currently under siege from the Republican "establishment" and which would argue that the GOP was betraying the base.

I thought, at the time, as is clear that the gamble the GOP was making in not taking up Merrick Garland's nomination was really risky. As it turned out, it was brilliant strategically. By waiting President Obama out, the Republicans were able to secure a conservative replacement for Justice Scalia, although certainly not one of his intellectual weight.  It was a gamble that paid off for them.  It's essentially the same gamble that Ruth Bader Ginsburg made in the latter stages of President Obama's second term, betting on a Democratic administration, which didn't pay off.

What I also thought, but which I didn't put down in these posts, but might have elsewhere, is that it was Constitutionally questionable for the Senate not to take up the Garland nomination.  The Senate's job is to "advise and consent".  It didn't do that.

Indeed, in retrospect, Democrats could have filed suit and sought a Writ of Mandamus requiring the Senate to hold hearings.  But it would have been to no avail.  All that would have occured, had they won, was to convene hearings sometime that Summer which would have lead, I suspect, to a non confirmation.  That would have been quite politically awkward for the GOP, and it might have had the impact of swinging the election to the Democrats.

Contrary to what people seem to believe, things like this aren't that unusual.  I've known one well qualified nominee to the Federal bench who didn't get on as the Senate didn't take up his nomination for political reasons. Granted, that wasn't to the Supreme Court, but to a Federal District Court, but nonetheless these things occur. They simply waited that nominees President out until there was a new one.  That's exactly what the Republicans did, very openly, in 2016.

It doesn't appear that they'll do that here, but the Democrats don't really have a good argument that the GOP should wait.  In 2016  they argued against it.  There's no Constitutional requirement that waiting be done.  

The real question, therefore, is whether lifetime appointments of this type make sense any longer. The better evidence is that they don't.