The Republican strategy of ignoring President Obama's nomination of Merrick Garland to the Supreme Court this year paid clear dividends. It didn't appear to hurt them in the 2016 election, and now a GOP president gets to nominate Antonin Scalia's successor. Win-win.
Some on the left are still circulating theories about how to prevent their emerging Supreme Court nightmare by somehow shoehorning Garland into the nation's top court. The attempts described below would be desperate, fraught and highly controversial, to be sure. But with President-elect Donald Trump potentially appointing multiple justices — the court is about as old as it has ever been, which means more vacancies appear likely — some liberals say it's time to go nuclear (again).
Below we describe two theories — both of which would require swift and dicey action on one specific day, Jan. 3 — and why they're very unlikely to be attempted and even unlikelier to succeed.
The first, which we'll deal with briefly, is a recess appointment. Over at the New Republic, David Dayen a few weeks back suggested Obama could appoint Garland to the court on Jan. 3, between sessions of Congress. The Senate, with a thumbs up from the courts, has essentially foreclosed the possibility of recess appointments by holding what are known as “pro forma” sessions during its recesses — gaveling in and immediately gaveling out without actually doing anything. But Dayen argues that Congress must recess between sessions, and Obama could attempt to instantly appoint Garland.
The main problems with this idea — in addition to whether it would pass legal muster — are (1) that it would likely only give Garland a year on the court, meaning it's hardly a long-term solution to Democrats' Supreme Court problem, and (2) that doing so, in exchange for a brief period of Justice Garland, would create a whole new problem for Democrats by leaving a vacancy on the hugely important D.C. Circuit Court, which is the second most-important court in the United States. And who would get to fill that vacancy? Trump.
The second theory — and to me, the more interesting hypothetical — would also take place on Jan. 3 and would also take advantage of the break between sessions of Congress. Over at Daily Kos, David Waldman describes it in detail. Here are the basics:
- At noon on Jan. 3, 34 senators whose seats were up in 2016 see their terms end, and they need to be sworn in again at the start of the next Congress — the 115th.
- Democrats happen to have a 36-30 majority (including two Democratic-caucusing independents) among the 66 senators whose terms will not end and will not need to be sworn in again, meaning they technically have a brief majority at the start of the next Congress.
- Vice President Biden is still the presiding officer of the Senate at that point, since Trump and Vice President-elect Mike Pence won't have been sworn in. And the presiding officer has the floor to start the 115th Congress.
- Rather than recognize Senate Majority Leader Mitch McConnell (R-Ky.) to begin the proceedings, Biden could recognize Senate Minority Whip Richard J. Durbin (D-Ill.). (The Democratic leader, Charles E. Schumer of New York, is among those who won't have been sworn in for another term yet.)
From there, it gets complicated. I'll let Waldman walk it through. It's dense, but it's all important:
Those of you who remember the complicated lessons from a few years ago on the origins of what Republicans originally called the “Constitutional option” (later referred to as the “nuclear option”) might recall that the original “script” called for the invocation of a little bit of parliamentary “magic” on the first day of a new Congress. That is, it rested on the precedent of rulings by two previous (Republican) vice presidents that despite Rule V, which states that “the rules of the Senate shall continue from one Congress to the next Congress,” the new Senate may — on the principle that no Senate shall be bound by the “dead hand” of a previous Senate — consider under general parliamentary law whether it will accede to the continuance of the existing rules, or whether it wishes instead to amend them.
In the context of filibuster reform, these rulings were critical in that general parliamentary law has no requirement for supermajorities on the question of closing debate. In other words, until a new Senate acceded to the continuance of the existing rules, there was no operative cloture rule, and debate on any proposed new cloture rule could be closed, and the measure carried by, a simple majority vote.
Suppose Durbin, then, being recognized from the floor by Biden, were to seek such a ruling? Given the existing precedent, he’d be likely to get it. Now, suppose further that Biden has carried with him a message from President Obama, renominating Merrick Garland to the Supreme Court (his previous nomination having been returned to the president at the adjournment sine die of the 114th Congress). And having now been notified of that message, and having received the ruling that the Senate was currently proceeding under general parliamentary law, suppose Durbin was to move that the Senate as currently constituted immediately consider the Garland nomination?
It's a lot of ifs. And Waldman concedes that this would lead to a parliamentary battle over the rules — one the likes of which we may never have seen, given the high stakes — but he basically argues that Democrats have to try something.
I spoke with a few Senate experts, and they're skeptical it would succeed or even be attempted. Perhaps the biggest problem: Even if this succeeded, Republicans could use the same tactics to reconsider the vote once everyone is sworn in and their majority is restored.
Jim Manley, a former top aide to outgoing Senate Minority Leader Harry M. Reid (D-Nev.), said there isn't a “snowball's chance in hell” of Biden and Durbin actually taking part in this gambit.
“The Senate and our constitutional democracy would break down if there was a moment between the expiration of the old Congress and the start of the new Congress when either side could entertain these types of shenanigans,” Manley said. “Proponents argue that Trump is breaking norms left and right, so why would Democrats play by the old fashioned rules, customs and traditions. There is merit to this, of course, but this is a bridge too far.”
Billy Piper, a former top aide to McConnell, said his money would be on his former boss in a rules showdown. He also noted that Democrats are currently ruing the day they instituted the original so-called nuclear option, which effectively dismantled the filibuster for non-Supreme Court nominations, when they were in the majority in the last Congress.
“I think those same members know that something like this would blow up in their face,” Piper said.
Which is a big point. Democrats know that this would be going to war, politically, and that it could backfire in a big way. Some liberals say this is worth it given the stakes and given how much Trump has tossed aside the political norms of the day. But politicians are more careful, and the idea that they could be foreclosing a future Democratic majority — regardless of what happens with the Supreme Court on Jan. 3 — is a scary proposition.
It would also, it bears noting, severely inflame the party that would be taking over the majority mere minutes later -- giving them a precedent and excuse to ram through judicial nominees and perhaps other controversial picks without giving Democrats a chance to fight them.
In the end, this is probably liberal fan fiction rather than a serious proposal. But it's notable that we've come to this point.