BRIAN DICKERSON: Garland reach high court without Senate action

If the eight surviving members of the U.S. Supreme Court have any opinion about President Barack Obama’s choice to replace the late Antonin Scalia, they have been scrupulous about keeping it to themselves.

Ditto for their reaction to the Republican Senate’s churlish refusal to acknowledge the nominee’s existence.

But the incumbent justices could still be the ones who ultimately decide whether U.S. Court of Appeals Judge Merrick Garland ever joins them on the nation’s highest court, especially if the White House pursues an option many legal scholars say is well within the scope of Obama’s constitutional authority.

In an essay published in Politico late last month, University of Michigan Law School professor Richard Primus raised the possibility that Obama could defeat the Republicans’ rope-a-dope strategy simply by declaring that the Senate’s obstinate inaction on his nomination of Garland implied its consent to the appointment.

“The Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee,” Primus noted — only that the president must make Supreme Court appointments “with the advice and consent” of the Senate.

Traditionally, senators have signaled their consent by voting affirmatively to confirm a president’s choice — or, conversely, registered their belief that a nominee was not qualified by voting to reject him or her.

The Senate has rejected plenty of nominees, particularly in the last three decades. But in the long history of the Supreme Court nomination process, the current Senate leadership’s refusal even to hold hearings on the Garland nomination is unprecedented. Primus, who clerked for Justice Ruth Bader Ginsburg before joining the U-M Law faculty, says Obama would be on firm ground — legally and constitutionally, at least -- if he decided that the Senate’s failure to put his nomination to a vote was evidence of its tacit consent to Garland’s appointment.

Upping the ante

Now Gregory Diskant, another longtime Supreme Court observer whose legal resume includes a stint as clerk to the late Justice Thurgood Marshall, has raised the stakes by urging Obama to give notice that he exercise his authority to appoint Garland without a confirmation vote if the Senate fails to act on the nomination within a reasonable period. In a recent op-ed for the Washington Post, Diskant notes that the historical average interval between a  nomination and a confirmation vote is 25 days. The longest wait, endured by Louis D. Brandeis in 1916, was 125 days.

“That suggests,” Diskant concludes, “that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination.”

If Obama were to issue the ultimatum Diskant prescribes today, Garland could be installed as the ninth justice by mid-July just in time for the Republican National Convention, which opens in Cleveland on July 18.

A White House ultimatum would leave Republican senators with only two options, neither of which offers more than a temporary reprieve from the losing hand their leaders have vowed to play out.

They could accept Obama’s challenge to schedule an up-or-down vote. But to defeat Garland’s nomination, Republicans would have to concoct a plausible reason to reject a man most of them voted to confirm when he was nominated to the U.S. Court of Appeals for the D.C. Circuit. The whole point of ignoring Garland’s nomination is to avoid such an embarrassing vote.

Alternatively, Republicans could call Obama’s bluff and challenge the appointment in federal court if the president attempted to seat Garland without an affirmative Senate vote.  But that lawsuit would be doomed first in the D.C. Circuit, whose liberal majority would almost certainly uphold the appointment, and ultimately in the Supreme Court, where a 4-4 deadlock between liberal and conservative justices would effectively uphold the D.C. Circuit result (even if Garland recused himself from taking part in the decision, which he almost certainly would).

Saving the game

Primus — who was, as far as I know, the first constitutional scholar to describe the “silence implies consent” option in the context of Garland’s nomination — doubts that Obama will ever exercise it.

Besides breaking with the “thick tradition” of exercising the appointment power only after an affirmative vote by the Senate, Primus points out, a decision to end-run the Senate would undermine Obama’s ambition to be seen as the grown-up in the room the patient executive upholding venerable constitutional conventions even as GOP senators persist in their petulant tantrum.

Indeed, some Republicans believe the White House never really expected Garland to be seated on the Supreme Court. Obama’s real objective, they insist, was to embarrass GOP senators facing tough re-election fights this November, assuring a Democratic Senate majority that would easily confirm President Hillary Clinton’s Supreme Court nominees.

But Primus thinks Obama is less interested in exploiting a political opening — or establishing a new constitutional precedent — than in reestablishing the bipartisan conventions that governed the judicial confirmation process for most of the nation’s history. For the first two centuries, he says, those conventions were not in serious dispute: The president made his choice, the senate acted within a reasonable time to give the nominee a hearing, and senators rejected only those nominees who were clearly corrupt or unqualified.

“Constitutional law is a lot like playground basketball,” Primus says. “There have to be house rules about how the game works, and there has to be an agreement that no one is bigger than the game.”

Would that we lived in a country where fewer players were forever threatening to take the ball and go home.