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Month: March 2016

Advice & Consent 03: Is everybody acting Constitutionally around here?

This Week

  • “Dan’s Uncle Joe” (not his actual uncle) addresses Georgetown Law School… Syracuse makes the Final Four. Coincidence? (#sportsball reference to a fierce basketball rivalry… pay no mind)
  • Noted liberal Miguel Estrada (former Bush-43 DC Circuit nominee) says National Rifle Association’s case against Garland as “thin to non-existent.”
  • One of those meetings this week? GOP Senator Mark Kirk, facing a tough election in IL this fall.
  • 4-4 tie means pro-labor union outcome. And perhaps an odd outcome to the Sisters of the Poor case. Still digging that extended vacancy Senators?
  • Senate Democrats Call For Vote On Obama’s Supreme Court Nominee By Memorial Day (based on average lengths of nominee confirmation periods since 1916)
    • Judiciary hearing starting 4/27
    • Committee vote by 5/12
    • Floor vote by 5/25

The Chatter

Politico: Conservatives hammer GOP senator over Supreme Court dissent

Election Law Blog: Why President Obama Has the Constitutional Power to Appoint—and Not Just Nominate—a Replacement for Justice Scalia

NBC News: Quarter of Republican Senators Now Back Meetings for Merrick Garland

NYT: On Business Issues, Republicans Might Want a Justice Garland

ThinkProgress: The NRA’s Case Against Merrick Garland Just Got Super Awkward

Buzzfeed: Senate Democrats Call for Vote on Obama’s Supreme Court Nominee By Memorial Day


Today’s Topic: Is everyone acting Constitutionally around here?



[The President] shall nominate, and by and with the advice and consent of the Senate… judges of the Supreme Court…

POTUS “shall” make a nomination when there’s a vacancy. Check.

What specifically does Advice and Consent mean? Is the Senate acting in bounds? The Constitution is a tad vague on this point:



Each House may determine the rules of its proceedings…

And that’s the rub.


Tim: everyone’s been Constitutionally fine up til now, but the Senate is taking the obstructionist role on this. Sadly there’s nothing but the political process to hold them accountable, and that’s not fast.

Adam: Most Americans who care about this stuff laugh at British people who say they have an unwritten constitution based on set of norms. Some things aren’t done. At times like this, we see just how much of our own Constitution is unwritten.

But because our Constitution is written, those norms are subject to change. E.g., when Andrew Jackson decided veto could be used for policy disagreement, when Senate decided 50 years ago never to confirm a judge without a hearing, when FDR accidentally set the permanent number of justices at 9.

Lena: many Senators aren’t acting according to the Constitution – text or spirit – by saying that doing nothing is a version of “advice and consent.” I believe there’s an affirmative duty, certainly according to custom and tradition, Senate’s own rules.

Sure, not all scholars agree there’s an affirmative duty for the Senators to do this, but for the leadership – who controls schedules – to shut down the entire process so that not a single Senator can really act is unprecedented. Unwise.

At least – even if not unconstitutional – this harms our constitutional representative democracy. Sets a really dangerous precedent. If can just hold out on SCOTUS, other cabinet positions for duration of presidency?

No remedy for this. Just the public holding them accountable.

Precedent for rejection

“The twentieth century brought a significant shift in the balance of power between Congress and the presidency. As the nation moved to world-power status, the chief executive assumed greater authority. This shift became apparent in the smaller number of appointments contested in the Senate, particularly when its majorities were of the same party as the president. From 1897 to 1955, the presidency and the Senate were in the hands of the same party for all but four years (1919-1921 and 1947-1949). During the century’s first nine decades, the Senate would reject only three cabinet nominees and five Supreme Court justices. Of these eight rejections, five occurred during periods of divided party control.”  


“Fourth Circuit Chief Judge John J. Parker, a prominent and distinguished North Carolina Republican, was the first Supreme Court nominee in the twentieth century to be rejected. The battle focused on the nominee’s judicial record, rather than his personal competence. Powerful opposition from the American Federation of Labor and the National Association for the Advancement of Colored People, portraying him as unfriendly to labor and minorities, caused his defeat by a two-vote margin on May 7, 1930.”




I think maybe there is the thinnest reed of constitutional responsibility in the Advice & Consent Clause for the Senate to do more than just say “WE WILL DO NOTHING,” but there’s not much about the modern confirmation process that is governed by the Constitution or constitutional law.  There are a lot of democratic and historical norms that the Republican Senate leadership is flouting, and that does have implications that could lead to a constitutional crisis, but I’m not comfortable saying that this incredibly destructive obstruction is unconstitutional.

Senate Judiciary Committee Democrats

NOTE: from Chris Geidner at Buzzfeed, quoting Judiciary Cmte. Dems’ letter to Republican leaders, and including a really nice chart: “Since Committee hearings began in 1916, every pending Supreme Court nominee has received a hearing, except 9 nominees who were all confirmed within 11 days,” Senate Democrats on the Judiciary Committee wrote on Monday.  According to the average time it’s taken to confirm nominees in the past, the Democrats write that hearings for Garland should begin April 27, with a vote of the Judiciary Committee on May 12.


Mic Drop

Tim: Justice Kennedy was nominated shortly before the beginning of President Reagan’s last term. There was a relatively wide open election where both parties had a shot at the White House, and the vacancy was sudden and unexpected.  Honest question: when between November 30th of the penultimate year of a presidency – the date Kennedy was nominated by President Reagan – and March 16th – the date Judge Garland was nominated by President Obama, do “the voters” in the upcoming election get a say in the selection of the nominee, in the parlance of the current Republican Senate leadership?

Dan: As promised, I’m going back to the deep and nourishing well of Dahlia Lithwick’s Facebook comments.  This is a brief one, but it’s so simple and gets extra points for a gourmet food reference.  Writing about today’s request for additional briefing in Zubick v. Burwell, which commentators uniformly believe is a sign that the Court is looking for a way out of a 4-4 split, Scott Lemieux (political scientist & Contributing Writer at The Week Magazine), writes:

“Make that prosciutto THINNER!” — Kennedy, J. (concurring)Bonus points for the reference to cured meats.  It’ll get me every time.

Adam:  The standard model on what levers Senate has to force a vote (e.g., http://www.forbes.com/sites/charlestiefer/2016/03/16/garlands-supreme-court-nomination-wont-be-so-easily-stopped-in-senate/#669c37e4338a) is nonsense. Dems won’t/can’t shut down the government over Garland. But along with grassroots pressure, there are parliamentary tricks they can use, although the time for using one of those tricks, objecting to referral to the Judiciary Committee under Rule XXXI, has already come and gone. http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI.

Take a look at Rule XVII (http://www.rules.senate.gov/public/index.cfm?p=RuleXVII), Rule XXII (http://www.rules.senate.gov/public/index.cfm?p=RuleXXII) and the tradition of leader remarks to begin the day, in particular.

Lena:  I don’t often want to applaud people for doing the bare minimum but there are some folks I want to thank. Though, as Rep. Tammi Duckworth notes, doing your job doesn’t get you extra credit.


Advice & Consent 02: A shorthanded Supreme Court

On the second edition of Advice & Consent… the ragtag gang of the usual suspects tackles what it means for American jurisprudence and policy to have a shorthanded Supreme Court for an extended period of time, plus more on the reactions to Judge Garland’s nomination.

Since last time

An early review of Judge Garland’s cases

WaPo: The respectful disagreements of Judge Merrick Garland

In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.

NYT: Merrick Garland’s Path to Nomination Marked by Deference, With Limits

In his appeals court decisions, Judge Garland has often been sympathetic to prosecutors’ arguments, and he has taken a legal approach that tends to help labor unions. According to the blog OnLabor, Judge Garland upheld National Labor Relations Board findings that employers had committed unfair labor practices in 18 out of 22 majority opinions.

A shorthanded Supreme Court – what does that mean for US law and policy?

Tim: The biggest issue I see with an extended shorthanded Supreme Court is that our federal judiciary is incapable of resolving Circuit splits, and that’s one of the biggest roles SCOTUS holds. It has a secondary impact of failing to resolve appeals properly, leaving the lower court holdings as the final say. So, we have a SCOTUS that runs, but it’s hobbled. The Court has an odd number of Justices for a reason…

Adam: We have our first 4-4 decision.  It’s in a case involving a long-standing federal rule that banks can’t require spouses to guaranty a loan as a condition of writing the loan. Most federal courts have gone along with it, but not the Eighth Circuit, which covers a number of midwestern states.  Now, there is no uniformity.  Banks are barred in most states from doing this, but not in states covered by the Eighth Circuit.

Even more interesting, SCOTUS already seems to be shying away from its role.  Three cases this week in which the Court decided less than it seemed it might–a case involving whether a guy can use a hovercraft in Alaska National Parks (big deal in AK) (http://www.supremecourt.gov/opinions/15pdf/14-1209_kifl.pdf), a case about whether a class action claiming Tyson’s Food owed millions in unpaid overtime (http://www.scotusblog.com/2016/03/opinion-analysis-group-lawsuits-get-a-modest-boost/#more-240381), and a case asking whether stun guns are protected by the Second Amendment (http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf ).  Each of those cases decided a relatively small part of the case and left it to lower courts to figure out what to do.  So the hovercraft guy doesn’t know if he can power up his vehicle, people don’t know if they can carry stun guns around, and Tyson’s employees don’t know if they’re gonna be paid overtime even though the Court decided each of their cases.  That’s often a sign of a Court that’s unable to get make a real decision and just punts on the issue.  Leaves law unsettled.  Just reading tea leaves, but I suspect that’s what’s going on.

Also, It has agreed to hear just one new case since Scalia died.  I checked the three previous years and in that same time period (taking leap year into account), the Court agreed to hear 5 cases last year, 7 the year before, and 11 the year before that).  Could be coincidence; the one case they agreed to hear was a big one, Samsung v. Apple regarding patent infringement.  But if justices are purposely rejecting cases because they are unsure of how a 4-4 court will deal with them, it’s skewing our law already.  Example:  The Court has turned down a bunch of appeals by state officials where lower federal courts have thrown out state-court convictions (habeas cases).  Surely, this must upset law-and-order conservatives.

Lena: Interesting to hear the Justices say that they can function just fine with 8. The integrity and independence of the Court is crucial, and I think the Justices are trying to publicly display confidence in their institution.

  • Justice Alito:
    • “We will deal with it,” Alito told an audience at Georgetown Law, pointing out that there is nothing in the Constitution that specifies the size of the court.
    • “We will see what develops,” he said.
    • Source: CNN
  • Justice Breyer:
    • “we’ll do our work,” Breyer said during an interview (by NBC News correspondent Pete Williams as part of a forum for Supreme Court fellows). “For the most part, it will not change.”
    • While some experts have predicted that the court will be stymied by being divided 4-4 in key cases, Breyer downplayed that possibility.
    • “The cases come along. Contrary to what a lot of people think, half of our cases are unanimous. The number of 5-4 cases in a typical year is around 20 percent,” observed Breyer, an appointee of President Bill Clinton.
    • Source: Politico
  • 10 days before Justice Scalia died, Chief Justice Roberts (talking about confirmation process):
    • “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” he said. “If the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process.”
    • “We don’t work as Democrats or Republicans,” the chief justice said, “and I think it’s a very unfortunate impression the public might get from the confirmation process.”
    • Source: NYT

The Chatter

FiveThirtyEight: Republicans Could Do A Lot Worse Than Merrick Garland Under President Clinton — Or President Trump

New Republic: Report: Republicans told Obama they’d confirm Merrick Garland if the Democrats win the presidential election.

NPR’s Morning Edition: Nina Totenberg interviews POTUS on the nomination.

WaPo: The respectful disagreements of Judge Merrick Garland

Vox: Is Merrick Garland more conservative than Antonin Scalia on criminal justice issues?

New Yorker: Court Politics

Slate: Ideological Imbalance – Why Democrats usually pick moderate-liberal justices and Republicans usually pick conservative ones.

Mic Drop

Dan: A double deuce of a mic drop!

1 –  Mr. Johnson from Wisconsin

2 – My mic drop every week is almost definitely going to be something from the great Dahlia Lithwick’s Facebook feed.  (say who Dahlia is in 1 sentence).  This week: Merrick Garland, always winning.  Apparently the Chicago Tribune has no editor, because somehow they published a fairly long reflection about the trials and tribulations about middle school friendship… except it’s just the author’s story about how he rode the bus with Merrick Garland.  He asked the young Merrick what grades he got.  Merrick told him he got As.  Young Merrick did not ask the young Eisenhammer what he got.  Then, next thing you know it, Young Merrick and Young Eisenhammer face off against one another in an epic showdown, as Current Eisenhammer puts it:  

Then came the relay race that likely ended my budding closeness with Merrick. I’ve not thought back about that day until now — with Merrick being under consideration for the U.S. Supreme Court.

Eisenhammer goes into great detail about how he was making up ground on Garland and about to overtake him to win the race, when Young Garland allegedly cut to the left in front of Young Eisenhammer, causing YOung Eisenhammer to stumble and thus lose the race.  Why is this important?  Only to show the ridiculous things that will get published during the course of a Supreme Court nomination.  Here are Eisenhammer’s final, profound conclusions:

Still, with Merrick’s name in the spotlight, I wonder about a few things: Did Merrick Garland get away with something during that relay race? Was it intentional? Or does he just know how to win?

Fifty years later, it hardly matters.

But that relay race taught me a lesson about Merrick Garland — and one that I witnessed during that earlier bus ride.

Cross his path, and you’ll come out second best.

Read this at the Chicago Tribune

Adam:  More on precedents.  Due to a variety of circumstances, including times when either the GOP or the Democrats were strong majority parties in Congress, the last time a Republican Senate dealt with a Democratic president’s nominees was in when presidents had names like Grover Cleveland and Supreme Court justices had names like Lucius Quintus Cincinnatus Lamar II.  That may explain their novel strategy so far.  But if you think that’s strange, trivia questions for you:  When was the last time a Democrat appointed a Chief Justice?  Which president and who was the nominee?

Lena: So I’m likely to bore someone with conversation about the structure of our gov’t and our Constitution. One idea that I’ve been thinking about is one that Tim Burns, an attorney in private practice in Madison (and an ACS Board Member) published on Saturday:

Republican-appointed justices hold key to ending constitutional crisis: The four Republican-appointed Supreme Court justices can check the Republican Senate from unconstitutionally waiting for the next Republican president to replace Justice Antonin Scalia. Any one of those justices can do so by sending to the president a letter saying he will resign at the end of the current Supreme Court session unless the Senate fulfills its constitutional obligation of advice and consent. Faced with such a letter designed to thwart their efforts to politicize the court, the Republican Senate likely will see the wisdom of fulfilling its duty and allowing Obama to fill the vacancy. Such a letter is fully consonant with each Supreme Court justice’s oath to defend the Constitution.

Tim: Less shorthanded Supreme Court, more pop culture bleed into the process! After the nomination announcement, Twitter blew up a little bit when smart people rearranged the letters of “Merrick Garland” and realized it spelled “Kendrick Lamar.” The Internets exploded and the conspiracy was revealed.

Advice & Consent 01: It’s Merrick Garland and McConnell’s gonna McConnell

It’s nomination season, so the ragtag gang of the usual suspects returns with a new podcast: Advice & Consent. For those that followed the Roberts and Alito nominations about a decade ago, you may remember the Supreme Court Watch podcast. This show is much in the same vein, although it’s independent of any organization or entity. We come at things from a progressive/liberal point of view but we’re also committed to having a skeptic’s eye for everything in the process.

Canvassing the Reactions & Spins

  • Professional Court WatchersGreenhouse – Bring it on, Bork-styleLithwick et al in Slate: The White HouseLiberalsBernie supportersNOWBlack Women’s Roundtable

Republican LeadersElectorally Vulnerable Republican Senators

Thoughts on where we are right now.

  • Is this really a stalemate? A doomed nomination?
  • What is the Biden Rule? Is it really a rule or some made up nonsense? ACS: THERE IS NO BIDEN RULE 
  • Is CJ Merrick Garland a “disappointing” nominee for progressives?

The Chatter

NYT: A New Bork Battle?The president might even say: Remember Robert Bork? Treat my nominee in the same way. Have a conversation and let the public in on it. Of course the president and his allies know that’s exactly the public conversation that the Republicans fear, because it was clear from the first moment that any Obama nominee would inhabit the constitutional mainstream much more securely than either Judge Bork or Justice Scalia — whose “originalist” philosophy never gained more than a toehold at the court — ever did.

NYT endorsement of the nominationIf you tried to create the ideal moderate Supreme Court nominee in a laboratory, it would be hard to do better than Judge Merrick Garland…Mr. Obama has picked a strong nominee, who won bipartisan support in his confirmation to the appeals court. If the Republicans refuse to accept him, they will face one of two scenarios: a nominee selected by Hillary Clinton, who may well be more liberal, or one chosen by President Donald Trump — a racist, vulgar demagogue who many Republicans have said is unfit to run the country.

NPR: Merrick Garland Has A Reputation Of Collegiality, Record Of Republican SupportGarland has a lengthy record on the D.C. circuit court, but that court deals mainly with regulatory issues and not hot-button social issues of the day, such as abortion and gay rights. That has served as a confirmation advantage for previous nominees from the appeals court, and it likely will for Garland, too.On the appeals court, Garland has been a moderate liberal, with a definite pro-prosecution bent in criminal cases. Indeed, his views in the area of criminal law are considerably more conservative than those of the man he would replace, Justice Antonin Scalia.But Garland also has been a persuasive voice for liberals, managing to bring conservatives over to his side on issues ranging from the environment to national security. For example, in a case involving Chinese Uighurs detained at Guantanamo Bay, Cuba, Garland asked the Justice Department for the particulars of its evidence and then wrote an opinion for himself and two conservative judges that concluded that the Bush administration’s claim that they were enemy combatants was utterly unsupported by the evidence.

Rick Hasen at ElectionLawBlog:I have suggested (in the last chapter of Plutocrats United) that one way to compromise on SCOTUS nominees is an 18 year term limit. Appointing someone who is 63 moves in that direction. It gives the President a win, but one which as a matter of probability and actuary tables won’t be on the Court as long. It is a way for Obama to say that he could have reached for greater power over SCOTUS, but compromised.

In short, Garland’s age, which may make some liberals oppose his nomination, may be precisely what is attractive to the President who actually wants to appoint someone to #SCOTUS, and not just put up the human pinata.

Future episodes

  • First of all… they’ll be shorter and closer to “single topic” shows than this first episode monstrosity.
  • A deeper dive on Judge Garland’s record.
  • Are the Republicans at all correct with their stance on nominations at this time in a presidency (hint: no).
  • How much is the Court really going to change going from Justice Scalia to a Justice Garland?
  • A look back on Justice Scalia’s legacy.
  • Adam goes Rain Man on the Senate Rules.
  • In retrospect, did the Dems ever make a tactical error with past stances on nominations and the nuclear option?