Can the Senate approve Merrick Garland?

[Jimmy Higgins]

Here is a Constitutional question, to which I'm not certain if there is an answer.

If the Democrats managed to win the Senate (odds are much better than they should be, but still a long shot), can they hold a hearing for Merrick Garland and then approve him as a Supreme Court Justice? He was put by Obama, and the Senate did nothing for Garland. He wasn't rejected, McConnell simply ignored his presence as a nominee.

Obviously, this would be unprecedented, and would likely harm the institution (not unlike when McConnell violated the law by not putting things into motion for the nominee). But once nominated, is there an understanding that a nomination has a time limit or contingencies attached to it?

 

[Worldtraveller]

Here is a Constitutional question, to which I'm not certain if there is an answer.

If the Democrats managed to win the Senate (odds are much better than they should be, but still a long shot), can they hold a hearing for Merrick Garland and then approve him as a Supreme Court Justice? He was put by Obama, and the Senate did nothing for Garland. He wasn't rejected, McConnell simply ignored his presence as a nominee.

Obviously, this would be unprecedented, and would likely harm the institution (not unlike when McConnell violated the law by not putting things into motion for the nominee). But once nominated, is there an understanding that a nomination has a time limit or contingencies attached to it?

I don't think there's anything 'constitutional' that covers this, because the framers of the constitution assumed that the congress would be acting in good faith.

I would think once a different candidate has been put forth though, the previous candidate is considered 'withdrawn' from the nomination.

 

[Tom Sawyer]

"Considered" to be withdrawn or "actually" withdrawn? Those are two polar opposite things.

The Constitution seems to say that the President nominates and the Senate confirms. There's no wording which says that it needs to be the same President or that a new nominee overwrites the previous. That sort of thing is just kind of understood, of course, but not directly stated and therefore not an actual rule.

If a new Dem Senate did confirm Merrick Garland and the GOP objected, the matter would go to the Supreme Court for a ruling but a 4-4 tie there would mean that they don't overturn the actions of the Senate and Garland gets on. Of course, it also means that the next time there's a GOP Senate, Kavanagh could get immediately appointed as soon as one of the Dem justices suffers a tragic small plane accident.

 

[Jolly_Penguin]

It is a good question. If Garland wasn't explicitly given a "no"..... it could be argued that he's still awaiting the answer. So why couldn't they now tell him yes? It was shortsighted and foolish for the Republicans not to tell him no, if they didn't. This would be a great move to make by the Democrat Party to show that it does indeed have a spine.

 

[Jimmy Higgins]

It would be an extremely bad move for the Democrats as it would cement in the fuckery that the Republicans started by not even putting him up for a vote. Democracy is in large part stabilized through tradition. If the Democrats put Garland on, that would pretty much ax the tradition and add more chaos to our governance.

Granted, the moderate Garland would have been a great choice... being fucking moderate and all, something we need in this nation. Heck, Justice Stevens was the most "liberal" guy on the bench near the end of his career and was put there by a Republican... showing how far right the bench had moved.

 

[Jolly_Penguin]

It would be an extremely bad move for the Democrats as it would cement in the fuckery that the Republicans started by not even putting him up for a vote. Democracy is in large part stabilized through tradition. If the Democrats put Garland on, that would pretty much ax the tradition and add more chaos to our governance.

What damage would it do beyond ensuring that in the future nominated justices would get an answer and not just be ignored? Sounds like an improvement to me.

 

[ZiprHead]

Wow, that question kind of blows my mind.

 

[Tom Sawyer]

If the Kavanagh nomination falls through, Trump could totally troll the entire country by nominating Merrick Garland to take his place.

Nobody would have any fucking clue how to react or what sort of opinion they should have of Garland. It would be brilliant.

 

[Jimmy Higgins]

If the Kavanagh nomination falls through, Trump could totally troll the entire country by nominating Merrick Garland to take his place.

Nobody would have any fucking clue how to react or what sort of opinion they should have of Garland. It would be brilliant.

I certainly could live with it. Just as long as we don't find out Garland recently acquired a $10 million home on the Black Sea.

 

[starwater]

Excellent question. It would be interesting how the Republicans would twist in the wind over this one.

 

[hurtinbuckaroo]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

 

[Tom Sawyer]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

Which rule caused it to expire? Can you link to it?

 

[Jimmy Higgins]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

Which rule caused it to expire? Can you link to it?

I suppose I could have googled this first. They don't cite why, but SCOTUS Blog is an authority on, if you can imagine it, SCOTUS.

 

[Tom Sawyer]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

Which rule caused it to expire? Can you link to it?

OK, I looked it up myself. It's Senate Rule XXXI, Clause 6.

NOT Clause 5, like the fucking dilettantes who don't really understand Senate procedures might try to tell you.

 

[Politesse]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

I suspect you're right, since this is what happens with other Senate business when the Congress ends, hence the characteristic urgency to get bills passed, nominees nominated, etc. It would be interesting to see the letter of the law on this though, if there is one. It is a rather interesting scenario.

And after all, bills can be reintroduced to the next Congress, as long as there is someone to back it; it gets a new number, but they aren't prevented from reconsidering it. If other Congressional business is assumed to follow similar rules, why couldn't a reconstituted Senate Judiciary Committee re-open the issue of the previous nomination?

EDIT: Ah, I see now. Because it is the president who would have to re-nominate the guy in order for that to happen. And there isn't a snowball's chance in hell of that happening.

 

[ZiprHead]

Garland's nomination "expired" with the end of the 114th Congress (on 1/3/2017).

Debbie Downer.

 

[Loren Pechtel]

Wow, that question kind of blows my mind.

I'd like to see all the Republican minds that would be blown if it came to pass.

And I don't see a downside here--I don't see the system being harmed. It simply tells future politicians you can't play that game of simply not making a decision.