Home » Advice & Consent 20: January 3, 2017

Advice & Consent 20: January 3, 2017

The end of the year special… a viable, Constitutional path to confirming Merrick Garland on January 3, 2017. But is it practical? Or even a good idea?

Preamble: January 3, 2017

There are a lot (A LOT) of pie in the sky, save the country from itself, never going to work, clickbaity theories on things these days. Most of these are sheer hackery.

HOWEVER. One thing caught our attention as it had to do with the process of confirming (or not confirming) Merrick Garland, which is kind of what this show’s been about. We think it’s been dismissed by a lot of people and embraced by others. Either way. It’s worthy of discussion.

At the outset, we are definitely aware that Chief Judge Garland is going back to work at his old job.

The Working Theory

With Biden in the chair on Jan. 3, the Senate can confirm a renominated Merrick Garland. Here’s how. (Daily Kos) by David Waldman

  1. On January 3, 2017 the US Senate will gavel into session with 34 Democrats, 2 Democrat-leaning Independents and 30 Republicans. There will be 34 Senators-elect awaiting to be sworn in.
  2. Vice President Joe Biden is the person who gavels in the new Senate session
  3. Ordinary norms of Senate procedure would have VPOTUS recognize the soon-to-be Majority Leader Mitch McConnell (R-KY) and the Senate procedures would kick in with swearing in the new Senators and the new Republican majority.
  4. HOWEVER… at that precise moment, the VPOTUS has the conch (as it were) and nothing legally prevents him from recognizing another Senator. In fact, the Senate rules provide that the presiding officer must recognize whoever addresses him first, and no one traditionally has a right of first recognition, a norm that changed in the early 20th Century. Let’s say Biden chooses the highest ranking active Democrat there, Sen. Dick Durbin (D-IL). This is not illegal, just a change in the norms of Senate behavior. Very much like not holding hearings on a SCOTUS nomination. Or a POTUS candidate not releasing tax returns. Or a PEOTUS having business conflicts of interest.
  5. Let’s say Sen. Durbin – over the out of order protests of Sen. McConnell and others – does the following:
    1. Allows the president to submit a renomination of Garland through his messengers
    2. Allows Durbin to make parliamentary motions to make Garland’s nomination the pending business.
    3. Allows Durbin to use the nuclear option mechanism to get a parliamentary ruling from VP Biden (or from the majority of sitting senators should Biden rule against Durbin that the Senate rules are not in effect at the beginning of a new Senate, and default rules (similar to House rules) are in effect instead.
    4. Following an affirmative ruling, the Senate confirms Garland
  6. The Senate as constituted votes OR Sen. Durbin suspends without yielding to any Republican and they cut an alternative deal.

Confirmation chances?

(see whip count doc)

Tim: my count is 34-32 for confirmation… Sens. Heitkamp and Manchin vote no and the rest of the votes fall along party lines with the independents and Dems voting for confirmation and GOP against.

Lena: Maybe. Probably along Tim’s lines. But it requires one big influencer to make it happen – Uncle Joe.

Hesitation re: Senators Manchin (WV), Heitkamp (ND), others more in the center who are up for reelection unlikely to join.A lot of others (Stabenow (MI), Klobuchar (MN), Tester (MT), Donnelly (IN)) up for re-election – also may be unlikely if think could be a detriment

Is this legal/Constitutional?

The rule changes and precedent-breaking here are vast enough that they’re changes we usually associate with a banana republic, but if the Dems are willing to do this… do you think this works, meaning is it legal, Constitutional, and within Senate rules and procedures.

(Discussion on the mechanics only here)

Adam: The Supreme Court says one Congress cannot bind a subsequent Congress, and the Constitution says the Senate makes and interprets its own rule. Those to doctrines together make this legal since interpreting the rules of a previous Congress not to apply to a new Congress is therefore a perfectly licit interpretation

Lena: Probably, but I think it could be tied up in the courts for a while.

Tim: This appears to be wildly against Senate norms, but I don’t see a hole in this that would prevent it from working. It would amend Senate rules from a prior Congress and, as Adam notes, not violate any Constitutional framework. The vote would be legal and in quorum.

For the record, there are those that say this is “fantasy.” (Sean Davis, cofounder of The Federalist lays out his counter argument in an article in – you guessed it – The Federalist). Long story short, there’s an argument that Senate rules for the presentation of credentials (i.e. all the new Senators) takes precedence over everything and Durbin’s motion(s) would be out of order or otherwise contrary to Senate rules.

However, Adam’s contention that the nuclear option kills this rule strikes me as a compelling rebuttal to Davis.

Is this a good idea?

This burns up a working Senate and possible sets up a Constitutional crisis. But it’s legal and sets things “right” by getting Merrick Garland on the Court. Is it a good idea? Is it worth it?

Lena: No. Afraid that people are holding on hope and will only be further disappointed. Someone needs to govern, I’m concerned about norms.

Adam: if you believe our government is completely broken, then yes. Otherwise, no. Because the new government would likely pack the court with new seats in response, do you want the Court to be a central issue, this is a great way to do it, but it won’t create a working liberal Supreme Court majority.

Tim: I won’t lie… I have been attracted to this theory. I think the Dems would be fully justified to tear up norms in history’s biggest and boldest example of tit for tat. However, I recognize this damages the Senate as a working body for a long time, perhaps permanently and that’s why I lean away from it. It’s a bad idea.

That said… With a President Trump coming 17 days later, perhaps that’s a feature and not a bug? But by hobbling the legislative branch, does this empower the incoming POTUS all the more? Also, will CJ Roberts have any authority to choose not to acknowledge a Justice Garland? And would Trump do anything to prevent Justice Garland from serving (bar him from the building?) after Jan 20th? Trump’s White House counsel is Donald McGahn, a former FEC member, and has a similar personality as The Donald. Expect boundary pushing legal opinions from him on this and other things.

On the other hand: if there’s a possibility this doesn’t work, you just handed President Trump a slot on the DC Circuit too. So there’s that. I’m also not sure if there’s a political backlash that would happen where Dems would reap a worse whirlwind in 2018 (and perhaps 2020) than expected.


Is this going to happen? Will it be a vote with the mini-Senate or a deal? How does PEOTUS Trump and CJOTUS Roberts react?

Adam: This requires someone to have a burning rage at how the Garland nomination was treated. It’s possible they 32 Senate Ds and Biden have this rage. However, the president must share this rage tool. He doesn’t. How often have you heard Obama passionately discuss this issue? Zero times? So we’re just wasting your time here with a fun scenario.

Lena: No. I think there’s a better chance of a recess appointment, which I give a .001% chance. Moreso, I think the chances of it happening are 0% based on 1) President Obama 2) Chief Judge Merrick Garland (already saying will be back to work in January).  Garland is scheduled to hear oral arguments starting Jan. 18 which to me indicates they don’t have the nominee on board.So if something like a recess appointment or this Jan. 3 option happens, it’d 100% be with another person and not sure who that would be..

Tim: Democrats don’t do things like this. I think POTUS sees a post-Trump future where institutions still matter and this would be contrary to that.

Bonus: Recess Appointment?