A 17-Day Window to Confirm Merrick Garland in January? It Could Happen.
Conventional wisdom holds that President Barack Obama’s nomination of DC Circuit Chief Judge Merrick Garland to the Supreme Court is likely to follow one of two paths:
- Senate Republicans hang together and block the nomination entirely. The nomination expires when President Obama leaves office, and the new president gets to pick someone.
- Senate Republicans cave on procedural obstruction. The nomination succeeds with the fewest possible Republican votes.
I agree that it’s overwhelmingly likely one of these things will happen, regardless of which party wins the White House or the Senate this November. There have been some grumblings about Republicans confirming Garland after losing in November to avoid a younger and more liberal choice from the next Democratic president, but keeping that possibility open undermines the (highly dubious) principle on which the obstruction is based: that a Supreme Court vacancy in a presidential election year should be chosen by the new president, not the incumbent one.
But there’s one more possibility:
3. Democrats take back the Senate and confirm Garland before President Obama’s term expires.
If this sounds nonsensical, familiarize yourself with the 20th Amendment to the US Constitution (or just keep reading). The 20th Amendment says that after an election, the new Congress takes office on January 3rd, and the new President takes office on January 20th. That leaves a 17-day window of overlap between the new Senate and the old President — as well as the old President’s nominations.
Of course, if a Democrat wins the White House in 2016, a new Democratic Senate probably won’t deny their new President a nomination when the existing one already appears lost. Especially since a new Democratic President would probably nominate someone younger and more liberal.
But imagine a world in which Democrats win the Senate and a Republican wins the White House. The new Democratic Senate majority might stick to the party line about how President Obama has a right to fill a vacancy that occurred on his watch, and confirm Obama’s nominee during the 17-day window. Doing so would ensure that the Republican President-elect doesn’t get to pick the next Justice, and it would be consistent with the position they’ve articulated since Justice Scalia’s passing. It would take strong party unity and possibly some procedural boldness, but it could be done. Chief Justice John Marshall, unquestionably the most influential judge in American history, was not only confirmed, but also nominated after President John Adams had lost reelection. (Adams moved to do even more than that)
Given the realities of modern politics and the specifics of this election, it’s unlikely Democrats will win the Senate without also winning the White House. But stranger things have happened.
Speaking of stranger things…
That 17-day window has made oddities before. Here are some recent ones:
- In 2001, the President was married to a Senator. First Lady Hillary Clinton had been elected Senator from New York in 2000, and took office before President Bill Clinton’s term expired.
- In 2001 (again), the Senate majority changed three times. The voters in 2000 reduced the Republicans’ Senate majority to a 50–50 tie. The Vice President breaks ties in the Senate so when it convened, Vice President Al Gore (who had just lost the disputed presidential election) gave Democrats the majority. A few days later, when Vice President Dick Cheney took office, the Republicans became the majority. But that only lasted a few months. In May of that same year, Senator Jim Jeffords left the Republican Party, giving Democrats a 51–49 edge. That one lasted a year and a half, until Republicans won the 2002 midterms.
- In 2009, the Vice President-elect was sworn in as a Senator. Joe Biden, who had been elected both to the Vice Presidency and to a seventh term as a Senator from Delaware in 2008, resigned from the Senate a few days later.
Previously: The Conservative Case for Confirming Garland
