It’s an open question whether Hillary Clinton will choose to renominate Merrick Garland if she’s elected president.
But regardless of the election’s outcome, President Obama’s Supreme Court nominee will soon be the subject of some interesting procedural questions.
For those who love process, here’s everything you need to know about when and how Garland’s nomination will die — or come back to life — between now and the end of January, according to Senate aides. It might seem simple, but it’s not.
Let’s assume Merrick Garland doesn’t get confirmed in the lame-duck. Does his nomination stay active when the Congress ends? No — if Obama hasn’t withdrawn it, it gets sent back to the White House. Don’t forget that Obama is officially president until Jan. 20, after a new Congress will have convened. It’s unlikely, however, that Obama would overrule Clinton’s preference if she’s elected president. But might Obama resubmit Garland’s nomination if Donald Trump wins the White House? That’s an open question.
When exactly will Garland’s nomination die? We’re not sure yet. It happens when the Senate adjourns sine die to mark the session’s end. That could be the day the senators leave in December (maybe Dec. 9, when the continuing resolution runs out, or Dec. 16, leadership’s target date). Or it could be later. It just has to happen before noon on Jan. 3, when the new Congress convenes.
What are Obama’s options once the nomination is returned? He has several options. Once Congress comes back in, he can renominate Garland or nominate somebody else — there’s no rule forcing him to pick Garland again in January. Obama can also do nothing.
What if Congress is not in session when the nomination is returned. Can Obama do anything before lawmakers come back? Yes. If he’s going to nominate someone — Garland or another pick — he can announce that intention as soon as he likes. That way, staffers can start their pre-confirmation work and hit the ground running on Jan. 3.
What happens if Obama renominates Garland but senators still haven’t taken action on him by Inauguration Day? Surprisingly, according to Senate aides, Garland’s nomination would remain pending into the new presidency. That’s because there is no mechanism forcing the nomination to return to the White House with the arrival of a new administration. President Trump or President Clinton would have to withdraw the nomination at a later date.
Let’s add politics to the mix. Say Democrats win the Senate but can’t — or don’t want to — get Garland confirmed in the lame-duck. At that point, Obama might push the chamber to confirm his nominee between Jan. 3 and Inauguration Day (Jan. 20). But remember, the nominee still needs 60 votes to avoid a filibuster. And if Clinton is president, Obama would be unlikely to overrule her preference, whatever that is.