[EL] Instead of a recess appointment of Garland, what about an escalation in Constitutional hardball?

Sat Dec 31 12:49:49 PST 2016

That was linked in my original piece (there are other links too) which did not come through when I copied and pasted.

All the links are here (but behind the paywall):

https://politicalwire.com/2016/12/08/trying-push-garland-kill-filibuster/

From: Jonathan Adler <jha5 at case.edu>
Date: Saturday, December 31, 2016 at 12:47 PM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: "Wang, Samuel S." <sswang at princeton.edu>, "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu>
Subject: Re: [EL] Instead of a recess appointment of Garland, what about an escalation in Constitutional hardball?

FWIW, former Senate staffer Sean Davis has written what appears to be a fairly thorough explanation of why Waldman's proposed maneuver cannot work.
https://thefederalist.com/2016/12/07/no-senate-democrats-cant-use-nuclear-option-confirm-merrick-garland/

JHA

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On Sat, Dec 31, 2016 at 3:29 PM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Here’s a guest post I wrote on this idea for Political Wire:

Trying to Push Garland Through Could Kill the Filibuster

December 8, 2016By Taegan Goddard
 Comments
The following member post is by Rick Hasen, proprietor of the must-read Election Law Blog and a law professor at the University of California, Irvine School of Law.

David Waldman has raised hopes for a West Wing/House of Cards-style parliamentary maneuver to get the Senate to approve Merrick Garland for the United States Supreme Court before President-elect Trump will have a chance to fill the seat left open in February by the death of Justice Antonin Scalia. I’m no expert on the Senate’s parliamentary rules, but I know enough to know that Waldman relies upon some controversial assumptions to say that Senate Democrats could act in the narrow window when the Senate comes together just before new Senators are sworn in. At that magic moment, if Obama has renominated Judge Garland for Scalia’s seat (the current nomination dies with the end of the current session), the Democrats could then confirm him and deprive Republicans of the chance to fill the seat.

Even if we put aside the parliamentary objections and imagine that President Obama and Vice President Biden (who would be acting as President of the Senate in this scenario) would go along with this plan, it is hard to see how it is in the Democrats’ interest.  Senate Republicans could quickly move for reconsideration of the vote. It would be a major escalation in partisan warfare in the Senate. And the most likely result would be to hasten the possibility of Senate Republicans eliminating the filibuster for legislation.  Democrats already removed the filibuster (through an earlier controversial move) for all presidential nominations aside from the Supreme Court. But it remains for the Supreme Court and for regular legislation. While I fully expect Republicans will nuke the filibuster for Supreme Court nominees if necessary to get Trump’s choice through, I do not expect that Republicans will kill the filibuster for regular legislation. There are two many Senators on both sides of the aisle who believe it is useful.

That filibuster would give Democrats substantial leverage over much of Trump’s agenda, from repealing Obamacare, to loosening or killing banking regulation and consumer protection, to passing laws that might impose restrictions on abortion or create a national voter identification law.

In short, the only check Democrats have now is the legislative filibuster in the Senate, and there’s no surer path to killing that than Waldman’s plan.

On 12/31/16, 12:19 PM, "law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of Wang, Samuel S." <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> on behalf of sswang at Princeton.EDU> wrote:

    Dear all,

    I have read with interest the arguments against making a recess appointment of Merrick Garland. They seem sound, especially since Garland would be basically putting his career on the D.C. Circuit at risk with such a move.

    But what about the idea of a flat-out appointment on Tuesday, January 3rd? It has been suggested that for a brief moment, when 34 Senators' terms end at noon that day, the Senate will be comprised of 36 Democrats+Independents, and 30 Republicans. Can Vice-President Biden and briefly-Majority-Leader Durbin do the deed? See a summary of the idea here: http://election.princeton.edu/2016/12/25/constitutional-hardball-can-democrats-confirm-merrick-garland-on-january-3rd/

    At this point the idea is unlikely to come to pass. It's an escalation in Constitutional hardball that seems to go against Obama's grain. But I am interested in reactions to it.

    All the best and happy new year,
    Sam Wang

    --------------------------
    Samuel S.-H. Wang, Ph.D.
    Faculty Associate, Program in Law and Public Affairs
    Professor, Neuroscience Institute and Department of Molecular Biology
    Princeton University
    Princeton, NJ 08544
    http://election.princeton.edu/
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