The current constitutional and political fight over Senate hearings on Merrick Garland’s nomination, has varying concerns for the Republican leadership and candidates.  On the other side, the Democrat party, President Obama, and the candidates, appear to have little to lose by the nomination which sets the issue squarely at the door of the Republican Senate. A Supreme Court nomination process is one of the most important moments in our governing structure, so I don’t want to minimize the weight of this moment, but if the Republicans aren’t careful, they will “step in it.”

Consider the constitutional issues of the presidential nomination and the senatorial confirmation role. It is being argued that the Senate is “required” to give advice and have hearings. Article II of the Constitution addresses the Executive powers of the presidency. Section 2 covers the role of the nomination process for the Supreme Court as follows;

 “He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law:…”

The argument is born from precedent, and an idea that the Senate is bound by the word “shall”. For some, and I mean some very serious legal authorities such as; Erwin Chemerinsky, Pamela Karlan, Doris Kearns Goodwin to name a few, have expressed their discontent for the Senate’s proclaimed lack of action in a letter to President Obama.

The letter calls the Senate’s lack of action an “…unprecedented breach of norms…” and that it is “standard” practice for the Senate to consider a presidential nomination.  The letter specifically points to rare past situations where, either a nominee was presented during an election year, or during a lame-duck presidency, but where action was usually taken. The letter acknowledges there was a filibuster to block a nomination under President Johnson, that politics plays a role in the process, and that we should not accept that a “lame duck” president’s nomination is illegitimate. The letter considers the lack of the Republican Senate’s action to confirm any nominees for the D.C. Circuit Court of Appeals as the example, “poster child”, for the political fighting.

You can read the letter and the other notable legal authorities whom have signed this letter dated March 10, 2016.

Some of these points are interesting when you consider that it was President Obama who, while a senator, threatened a filibuster over Justice Samuel Alito’s nomination in 2006 by President Bush.  President Obama now “regrets” the filibuster threat from 2006, but like the expression “curses are like chickens; they always come home to roost”, thus so has his 2006 posturing. Talk about a “poster child” moment for curses and chickens. But that’s really about politics.

The letter seems to be more about what they believe the Senate “should” do based on history, but “should” doesn’t not a constitutional requirement make. Precedent is only precedent until it’s not precedent any more. Pick your favorite Supreme Court ruling that has changed precedent. But the precedent is certainly important. I think the Senate absolutely should set aside the politics, review, advise and vote on it. However, to not do so isn’t actually unprecedented. It’s rare, but non-action has occurred.

According to the Senate’s website page tracking the history of Supreme Court nominations, it contains a reference chart which chronicles the Supreme Court nomination dates, votes, the result and the date of result. Since 1789, 161 nominations have been made. The significant results are that 124 nominees were confirmed, and 117 of those chose to serve. Twelve were rejected by vote and there were nine instances of “No Action.” Granted, I did not review the circumstances surrounding each of these nine no actions. Four were re-nominated and were voted in, five had no action.  I’m not sitting in the Republican camp saying their tactic is okay, I’m simply saying it’s not “unprecedented” on its face.

You can review the nomination timelines here.

Some of the senators claim it’s so close to the election it should wait. But a quick review of the timeline from nomination to confirmation, or rejection, historically seems to run at about three months. So that argument really doesn’t hold water, either. What it does is further indicate that America’s leadership, on both sides, supra 2006, will play politics with whatever it takes.

And there’s more support which interprets the constitution as the Senate being obligated to hold nomination hearings. There’s also the Alliance for Justice (AFJ) letter, signed by 350 legal scholars from around the country, advocating the role of the word “shall”. The argument here is the Senate is “obligated” by the “shall” element to provide “advice and consent” for a President’s nomination.

Regarding the precedent argument, it is certainly true that Supreme Court justices have been voted for in the last year of a President’s term. Justice Kennedy was quite nearly one such nominee though he was nominated in November 1987, a year before the 1988 election.

But not everyone is in lock step of the Senate’s obligations. There’s the counter argument against AFJ letter regarding the constitutional requirements. The Washington Post website article by Jonathan Adler of March 15, (read here) recognizes written opinions by legal scholars Professor Michael Ramsey and Ed Whelan as reaching the opposite conclusion. These scholars state that while the President “shall” nominate, the Senate’s advice and consent role is left to them as to how they choose to provide it. I have to agree. After all, Article 1, Section 5 clearly states that “Each House may determine the Rules of its proceedings.”  I’m certainly not a constitutional scholar, but it seems you can insert the word “shall” in front of the Senate’s “advice and consent” role, and you still come out with an interpretation that they shall give their “advice and consent” anyway they want… or not… because no other branch can reach into the Senate and tell them how to do their job. Many bills have passed the House of Representatives and never made it to the floor of the Senate for a vote simply because the Senate didn’t act on those matters either. Precedent.

And there’s a kicker here. Adler lists Harvard’s Noah Feldman as not only outright rejecting the AFJ letter, but also reminds us that it is the Senate that determines how many justices will make up the Supreme Court. We’ve had nine justices for a long time, which is also precedent. But there is not a number of justices required in the constitution. Don’t forget, it was President Franklin Roosevelt who tried, and fortunately failed due to circumstances, to get his political party buddies in the Senate to raise the number of justices from nine to 15 while he was president. He would have gotten to nominate all six of the new justices, and in his attempt to pack the court, even his friends grabbed the reins and pulled back on that one. (Of course, by the time he died in office, seven of the nine justices were his nominations.)

Setting aside the constitutional issues of whether the Senate is or is not required, the political fallout could be a long chain tied around the Republican ankles for some time, simply due to a lack of leadership.

Many, of the Republican Senators, if not all, immediately dismissed any possible nomination which may be made by the President to replace the late Associate Justice Antonin Scalia.  More posturing than leadership. Justice Scalia was considered, and voted, on a more conservative line. President Obama is clearly not of that ideology, and his nomination, since he has nothing to lose, reflects a choice which could perhaps tilt the balance of the court in a more liberal direction. With the “election so close”, Republicans are trying to hedge their bets that a Republican, or at least Trump or Cruz, will take the White House, and present a more conservative justice to replace Justice Scalia.

For the Republican leadership, this is a tight wire act which can back-fire and affect Republicans well beyond the November election.

1)      As Supreme Court nomination timelines have generally taken about three months, the Republican Senate has the time to hear and vote on Garland. By not doing so, they voluntarily push the stench of political manipulation into the November election as a bigger issue than if they just got it out of the way. By not acting now, you have to consider the consequences of “2”.

 2)      The Republican nominee and possible President. Odds are that one of the two current leading delegate dogs in the fight, are likely to be the Republican nominee. (Whether they win is a different issue, and this is complicated by the idea of a brokered convention where neither is the nominee. But that’s a different blog story.) Let’s just go with the historical odds that after eight years of one party holding the presidency, the White House changes hands. The Republican led congress is facing a presidential Supreme Court nomination by a president which they can’t stand in either Trump or Cruz. So you have to wonder if Garland is the better option. And they can’t NOT approve a nominee by either of these two after November. They simply can’t… right? If either of these two become president, the first thing after taking the oath will be to nominate their absolute favorite idea of a Supreme Court justice. (You might even here it in their inaugural address.) In this moment, based on his agitating rhetoric, Trump will stick it to the Senate. Cruz might, MIGHT, be more affable in this moment. You absolutely have to ponder, but not for long, that the question of “who will you nominate as Supreme Court Justice” is going to be, not just the first political question of the campaign, but THE potential brokered issue at the Republican convention.

3)      But wait. What if the Las Vegas odds makers are wrong and the changing hands doesn’t come to pass, and we have another “President Clinton.” (Bernie, you’re just going to have to accept it. The ice-caps will literally melt first before you’re president – even if you won the nomination.) If this happens, what say you now Republican Senate?

Are you going to deny the new President’s first nomination? Probably.

Second nomination? Iffy.

Third nomination?

          Are you going to try and hold out for the next four years, leaving the court at eight? I think not. You’re not because you won’t, even over a Supreme Court nomination, open the Republican Party to that level of political back-lash and, essentially, escalate the internal decay which is already occurring because the leadership as left itself a drift on the open waters of politics.

          As a party, you haven’t shown a backbone when it came to planning for the 2016 Presidential election. I certainly wouldn’t hold out hopes that if you lose the November election, you’re suddenly going to circle the wagons for the next four years, and hold out until the 2020 election in hopes of getting a Republican president.

          The Republican leadership wanted a “party guy.”  It doesn’t have one, because this wet-noodle leadership approach has put you in the position of holding the proverbial hot potato with nobody to throw it to.

Do the damn hearings, vote no, and get it off the table.