Gorsuch Confirmation Hearings

[ex-khobar Andy]

An interesting comment in today's NYT from Monilontra, in an op-Ed about Gorsuch. The discussion is in part about Garland and the Senate's failure to hear him.

Perhaps. More importantly, I think he [Obama] should have appointed Garland anyway. The Constitution doesn't spell out what the Senate's "advise and consent" function consists in. It says nothing about hearings or votes. It doesn't say the Senate has the power to veto an appointment. All of this is simply customary, and is to be respected as such; I'm not saying we should just ditch the protocol that has grown up over the years. But Obama invited the Senate to "advise and consent," the only thing the Constitution obliges him to do. He waited patiently for them to do so; they declined. I think he should have said, after a few months of this, "Ok, the Senate apparently does not wish to exert its privilege to advise on this appointments. I take this as tacit consent. Thank you Senate. Mr. Garland, congratulations on your appointment."

I am curious whether Obama could have done this. I am sure it would have been greeted with cries of pain from the Republican side (to match the hurt of the ordinary decent reasonable people about McConnell's decision to refuse to hear Garland) but would it fact have survived some sort of challenge?

[Bicycle Bill]

An interesting comment in today's NYT from Monilontra, in an op-Ed about Gorsuch. The discussion is in part about Garland and the Senate's failure to hear him.

Perhaps. More importantly, I think he [Obama] should have appointed Garland anyway. The Constitution doesn't spell out what the Senate's "advise and consent" function consists in. It says nothing about hearings or votes. It doesn't say the Senate has the power to veto an appointment. All of this is simply customary, and is to be respected as such; I'm not saying we should just ditch the protocol that has grown up over the years. But Obama invited the Senate to "advise and consent," the only thing the Constitution obliges him to do. He waited patiently for them to do so; they declined. I think he should have said, after a few months of this, "Ok, the Senate apparently does not wish to exert its privilege to advise on this appointments. I take this as tacit consent. Thank you Senate. Mr. Garland, congratulations on your appointment."

I am curious whether Obama could have done this. I am sure it would have been greeted with cries of pain from the Republican side (to match the hurt of the ordinary decent reasonable people about McConnell's decision to refuse to hear Garland) but would it fact have survived some sort of challenge?

So far as I am concerned it would have been music to my ears!

It also would have shown those Republican obstructionists that if they weren't gong to do their job, someone else would step in and do it for them.

-"BB"-

[Lord Jim]

Sorry guys, but that would not have worked:

Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obama’s nomination of Merrick Garland to the Supreme Court. Some sued (making borderline frivolous claims). Others argued that Obama could simply appoint Garland without Senate consent.

The problem, in both cases, is that the Senate has no constitutional obligation to consider a president’s nominees. While prior Senates largely used this power to withhold consent for lower court or executive branch nominees (leaving some judicial nominees in limbo even longer than Garland), there is no constitutional reason to treat a Supreme Court nomination differently.

Since the election, some are advancing a new strategy to place Garland on the high court: a recess appointment. This idea was floated by David Dayen in New Republic in November and endorsed this week in New York magazine by Ed Kilgore. The problem with this idea, however, is that it is clearly precluded by Supreme Court precedent and, even were this not the case, would be entirely fruitless (although not for the reasons Dayen and Kilgore suggest).

Dayen and Kilgore suggest that Obama could recess-appoint Garland to the Supreme Court (and other nominees to lower courts) on Jan. 3 during the short recess between the 114th and 115th Congresses. This intersession recess may be infinitesimally short — perhaps no longer than the time between two swings of a gavel — but (the theory goes) must exist as there must be some amount of time between the end of one session and the start of the next.

The idea here is not new. President Theodore Roosevelt used this intersession recess to make numerous recess appointments in 1903. The practice was never repeated, however, and the theory upon which TR’s actions were based were largely disavowed by subsequent administrations. But that’s hardly the only problem with an intersession recess appointment.

The real problem with trying to make such an intersession recess appointment is that the Supreme Court has held that such an appointment would be unconstitutional in Noel Canning v. NLRB. Dayen and Kilgore purport to address Noel Canning — claiming it does not apply since the case concerned only intrasession recess appointments — but they ignore what Justice Breyer’s opinion for the court actually says. As Seth Barrett Tillman points out, Noel Canning clearly precludes such an appointment. From Justice Breyer’s opinion:

we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

If a three-day recess is too short, a three-second recess would certainly be as well and, contrary to Dayen’s and Kilgore’s suggestion, Justice Breyer’s opinion makes no distinction between intrasession and intersession recesses. All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional.

The problems with the Dayen and Kilgore gambit do not end there, however. Such an appointment, even if attempted, would be futile, but not for the reasons they suggest. Kilgore says a Garland recess appointment could be nixed only by a Senate vote to reject Garland’s nomination — giving him the vote Democrats have called for — or through “extensive litigation.” He’s wrong on both counts. A vote against Garland’s confirmation would not undo a recess appointment, and litigation, “extensive” or otherwise, would not be necessary to remove Garland from the bench.

Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garland’s appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garland’s term would end.

This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.

https://www.washingtonpost.com/news/vol ... 5714797152

[Long Run]

Add, that if there were any hope for success of a recess appointment, the Obama crew almost certainly would have gone for it, given their willingness to push executive power which resulted in a record number of hand slaps from the courts (including the case referenced in the LJ's post).