A lot of people are asking me about the possibility of Obama moving forward with a Garland confirmation and swearing in of the 9th Supreme Court Justice. There is a way for him to do this, and frankly, I'm sure President Obama knows this as he is a Constitutional Lawyer and Professor before he was a Senator. Here is his justification, along with the challenges that would come with such a move. Frankly, I am 100% in favor of this move.
BRIEF HISTORY OF A SUPREME COURT IN CRISIS
The Supreme Court, according to the Constitution, requires 9 Justices. Upon Justice Scalia's death on February 20, 1016, the Republican led Senate made a statement that they would refuse to "advise and consent" any nominee that President Obama put forth. It is the President's responsibility to nominate someone, and the Senate's responsibility to consent, or agree to the nominee. On March 16, 2016, President Obama chose Garland as his nominee. A very safe, middle of the road Judge, Garland had been praised for decades by both Democrat and Republican lawmakers as someone who would be perfectly suited to serve as Supreme Court Justice.
In a move of pure political gamesmanship, the Republican led Senate, following through with their 2009 vow to deny President Obama any success in his time in the White House, originally in order to make sure that he was a one-term President and then after Obama's win in 2012, to deny him the legacy of success, in the hopes that the public would blame Democrats and the President for the slow growing economy, and in order to advance the prospects and future profits of the oil industry, weapons manufacturers, pharmaceutical windfall profits, and a host of other positions which harm not just the middle class, but humanity as a whole. Their bullheaded baby games worked, and on November 8th, 2016, while Democrats gained seats in the House and Senate, Republicans held the Senate by just one Senator, and the House remains firmly in the hands of Republican fascists. On top of that, they now have a veto-proof President. Through January 20th, 2017, we will still have a firewall in the White House against an extremist right-wing set of disastrous attacks on the middle class and the environment.
Vox's Matt Moody writes
"...Here’s the nerdy Con Law argument. The relevant Constitutional provision is the Appointments Clause (Art. II, § 2, cl. 2.), which says, in relevant part: “The President, … by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” The Constitution does not say what constitutes “consent of the Senate,” but throughout history that has been a confirmation vote. But there is no constitutional decree, no statute, and no case law that says a vote is necessary for confirmation. The only Senate Rule on the subject states that “When nominations shall be made by the President of the United States to the Senate … the final question on every nomination shall be, ‘Will the Senate advise and consent to this nomination?’” But nowhere does the Senate in its own rules state affirmative consent by vote is the way a nominee can be confirmed. And, although the Senate has the power to make its own rules, that power, arguably, does not extend to defining what consent means in the Appointments Clause. So if the President makes a nomination, and the Senate fails to act, Qui tacet, consentire videtur. The nominee is confirmed by the Senate’s silence.
Obama would simply issue a written commission to Garland and Garland could be sworn in to the Supreme Court. There are two oaths that Garland would have to make: the Constitutional Oath (to uphold the Constitution) and the Judicial Oath (to administer justice). Although the Chief Justice normally administers the two oaths of office (something Justice Roberts might be unwilling to do), pretty much any official could do it. In 1967 Associate Justice Hugo Black administered the Constitutional Oath to Thurgood Marshall and the clerk of court later administered the Judicial Oath. In order for this to happen, Obama would have to decide that this last fight would be one of the largest legacies of his presidency. Garland would have to agree to be even more of a political football than he is. There would of course be a lawsuit, and who knows how that would turn out. The D.C. Circuit court leans liberal, and a 4-4 split in the Supreme Court would keep the Circuit Court ruling in place, but Obama’s gambit could easily be viewed as unconstitutional, even by a liberal judge, and might be swiftly overturned.
I’m no Constitutional scholar (like, you know, Obama), but I did get the highest grade in my 1L Con Law class, so I think my argument is at least good enough that it could be worth an Obama Hail Mary. I wouldn’t be on it happening, but I also would not have thought that a Republican Senate could hold a Supreme Court seat hostage for a year and face absolutely no repercussions (political or otherwise)..."
NOTE:
I personally think that most federal Judges and Supreme Court Justices would happily allow this appointment to stand. Republican's ripping up the Constitution has not gone over well. There would be a battle for sure, as the GOP continues to attempt wiping Obama's legacy, placing an asterisk next to his name as a legitimate President. It's never really been about policy for them. It's about White male supremacy, but that's another story. It is true that somehow it could be overturned in a high court, but again, as Matt said; the argument is at least good enough that it could be worth an Obama Hail Mary. One more note: If Trump has half a brain, since he's not actually a Republican anyway, he should put Garland up for consent if Obama chooses not to act. That would go a long way with Democrats, and send a message to Republicans. Garland is not on Trump's list, but that's only because he hasn't thought of it yet.
About Merrick Garland
From your lips (pen) to G-d's ears!
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