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

[Jonathan Adler]

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

----
Jonathan H. Adler
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On Sat, Dec 31, 2016 at 3:29 PM, Rick Hasen <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 on
> behalf of Wang, Samuel S." <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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