Supreme Court games

The actions by Mitch McConnell and the Republicans in the Senate securing Justice Gorsuch’s appointment to the Supreme Court, while disappointing, was entirely predictable and one could even justify as within the realms of “politics as usual”.  The Democrats would have taken pretty much the same course given a chance. In fact, the Democrats had performed a precursor of this with their moves several years earlier cutting back the “super majority” requirements on judicial nominations below the Supreme Court level.

What’s exceedingly more egregious and should have resulted in a different reaction was the prior year’s abdication of Senate responsibility to consider and vote on Obama’s nomination of Merrick Garland for that same seat immediately upon the death of Antonin Scalia.  President Obama and the Democrats should have challenged the Republican blocking action.  The Constitution offers no such exception to the requirement in Article 2, Section 2 that the Senate provide its “advice and consent” to the president’s selections for potential replacement members to the Supreme Court.  Article 2, Sec. 2 does not say that the Senate can ignore such a nomination. True it offers no established deadline or timetable for this Senatorial duty to be accomplished.  But the clear implication is that the appointment is indeed an Executive Branch power, and agreement with or objection to the appointment by the Senate is a secondary ratification. That is why it is provided for in Article 2 rather than in Article 1 (Legislative) describing the powers of the Congress.

This being the case, President Obama and the Democrats in the Senate in 2016 should have challenged the Republican Senate.  After an appropriate length of time and following several published demands that the Senate perform its constitutional duty, the president should have declared that the Senate’s inaction amounted to acquiescence and that that lack of any negative declaration amounted to “consent”.  He then could have sworn Garland in and instructed to take his seat on the court.  Had the Republicans appealed this to the Supreme Court, and even if Garland recused himself, the Court would have split 4 to 4, leaving the accomplished action as the status quo.

This would have settled once and for all the fact that like it or not, the Congress must do what the Constitution says it must do.