The Dangling Nomination

Lacking any other issues with which to attack the inchoate apocalypse (/s) to breathlessly fear the end of times, Dahlia Lithwick resurrected the Obama administration’s sacrificial lamb for the Supreme Court, Merrick Garland. He was, of course, a pawn in a political game that, in a better world, a better nation, would have never happened.

Maybe some Republican will be big enough to admit that it was just a cynical gambit, but they pulled it off. Sure, some nice folks believed their story, but they knew it was nonsense, a scam to prevent Obama from exercising his constitutional authority. Having done so, they now have to worry that they’ve escalated the war over the Supreme Court and will be repaid should the Democrats ever get their act together and realize that they can’t win elections by sacrificing the majority of Americans in favor of a small entitled minority.

While there might be some greater zeal toward fighting for Garland’s nomination if he wasn’t a moderate conservative’s dream justice, he will likely be better than the next nominee. And no one on either team denies that he was well-qualified for the job, even if he wasn’t your flavor of justice. That was never the issue. But there he is, sitting quietly on the sidelines, in Senate purgatory.

Lithwick doesn’t want to let this go, Obama be damned.

We are told to give him a chance, to reach across the aisle, and that we must all work hard, in President Obama’s formulation, to make sure that Trump succeeds. But before you decide to take Obama’s advice, I would implore you to stand firm and even angry on this one point at least: The current Supreme Court vacancy is not Trump’s to fill. This was President Obama’s vacancy and President Obama’s nomination. Please don’t tacitly give up on it because it was stolen by unprecedented obstruction and contempt. Instead, do to them what they have done to us. Sometimes, when they go low, we need to go lower, to protect a thing of great value.

As amusing as a battle to see who could go lowest might be, she begs progressives to take a bad situation and make it worse.

The only proper response from progressives today must be that Donald Trump is a lame-duck president with only four years left in his term, and we must let the people decide the next justice for the Supreme Court. Less fatuously, it must be to obstruct the nomination and seating of any Trump nominee to fill Scalia’s seat. We will lose. But that’s not the point now.

Try to filibuster any Trump nomination? Wear safety pins on the lapels of senatorial pantsuits? Regain the White House and Senate by offering candidates and platforms that America doesn’t reject?* Lithwick has no answer. She’s not stupid, just angry. She knows “we” will lose, an unfortunate concession that she writes not as a legal journalist but as a progressive advocate, all those years of cred lost to her impetuous bias.

To reiterate, there is absolutely nothing procedural to be done about SCOTUS now. Put aside the Kickstarters and the viral petitions to demand a seat for Garland because an argument was floated that the GOP’s failure to hold hearings represented a waiver by Senate Republicans, leaving Obama free to fill the seat. The waiver idea has been roundly debunked across the ideological spectrum. Save your energy.

Maybe a petition at Heh. You kidz are so adorable. Just as the Democrats will learn that executive usurpation of legislative authority will come back to bite them in the ass, the Republicans will have to live with the consequences of this cynical gambit. If not at the hands of the Democrats, then the new party that will arise to fill the void that progressives created in the hearts and minds of a nation that rejected their ideology of love the few, hate the many, scream about it as loud as you can through the fantasy fog of sad tears. Some may quibble with this characterization, but that’s too bad.

Before you ponder Lithwick’s future as the counterpoint to Bannon’s Breitbart, she at least recognizes that her feelz won’t win the day. Lawprof Stephen Clark has gone full Timothy Leary down the Garland rabbit hole.

An alternative is shunning. The Court’s influence rests on its legitimacy as an impartial arbiter. But the Trump appointee will owe his or her position to an ideological scheme meant to keep the vacancy open for however many years it took to get a conservative. Such an appointee should be shunned as an illegitimate ideological plant.

Shun? So eighteenth century, but a harsh punishment for people who cry when their preferred pronoun isn’t used. Make the bastard sit at the lunch table with Thomas and Alito, and never invite him to the quasi-resurrected Notorious RBG’s cocktail parties. Hah! That will make him cry!

Neither is a pay raise. While the compensation of justices cannot be “diminished during their Continuance in Office,” nothing prescribes increases. Future Congresses might even try to freeze the salary of the appointee who owes his or her seat to this ideological grab, although concern for judicial independence may caution against starting down the path of varying salaries by justice.

So increase no justice’s pay, or just the illegitimate one? While this raises interesting questions for a 1L quiz, no one becomes a Supreme Court justice because they want to be RICH!!!

Most importantly, the appointee’s illegitimate vote can be shunned. Because the appointee’s presence on the Court will be illegitimate, so too will be any 5-to-4 decision with the appointee in the majority. While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint. Commentators should carefully designate and quarantine them.

Yup, the ‘shrooms kicked in.  Apparently, students at Albany Law are taught that Supreme Court decisions are only as precedential as you want them to be. Just don’t “internalize” them and let your judge know that you’re entitled to “quarantine” any opinions that hinge on a justice you’ve deemed illegitimate. Your client will thank you.

What the Senate did, or didn’t do, with the Garland nomination is an institutional travesty. It was wrong. It was cynical. It will, undoubtedly, harm the legitimacy of the Court. But the answer cannot be to double down on stupid, to further de-legitimize the Court and to undermine the check on excesses of power by the executive and legislative branches.

You may not like the next justice, no matter who it turns out to be, but whoever it is, righting the insanity of cynicism and partisanship better serves a nation than wallowing in butthurt. And no justice wants to be remembered in perpetuity as the second coming of Roger Taney. Not even Ted Cruz.

*Please stop arguing that Clinton won the popular vote. It’s not a credible argument to anyone remotely familiar with civics. Just stop embarrassing yourself, already.

25 thoughts on “The Dangling Nomination

  1. Bartleby the Scrivener

    Life’s gotten too crazy for me to look up Garland’s qualifications, but to be honest, it’s not relevant to my position on the topic.

    The Senate should treat the President and the Supreme Court with more respect than to treat the open seat as if it is only a political game piece and not a critically important part of our government. If they don’t think a particular nominee is qualified for the job, they can deny confirmation.

  2. Agammamon

    From the linked WP article:

    “In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty. ”

    I suppose you could take it that way. If you consider *voting on consent* to be the constitutional duty. And in those ambiguities ‘the Constitution glories in’ it fails to specify the form consent (or the withholding of) should take. It would seem to me that ‘consent’ is affirmative. And a failure to vote is not a failure to perform your duty but a withholding of consent. Which, I am informed, must be given ‘enthusiastically and continually’ in other areas of life.

    Or is Diskant saying that not resisting is the same thing as consenting?

    As for Merrick – while he’s not (IMO) particularly centrist and is pretty pro-state deference the Republican’s should have taken him.

    1. Trump will probably put up someone similar or worse, Clinton would have put up someone worse.

    2. Sometimes these guys surprise you – Sotomayor has turned out to be (in my admittedly uneducated opinion) far less deferential to the state/police, more protective of individual rights than I would have expect both from an Obama appointee and based on what little I heard of her background during the vetting.

    1. SHG Post author

      So you didn’t click the links either. Because everybody loves constitutional interpretations by the admittedly unqualified.

    1. SHG Post author

      Cool use of “anonymous,” but since I suspect you’re hiding from the Mossad, it’s understandable. However, the trifecta of commenters who can’t bother to click on links is harshing my lived experiences. Yes, it’s a fact. A totally irrelevant fact, as even Hillary’s bestest friend, Larry Tribe, explained.

      1. SHG Post author

        What part of my pink button on the sidebar made you think you needed to add in that link? What the fuck is it with everybody? Does anybody click on links anymore?!?

        1. Ross

          Yes, some of us click on links. When we click on links, we are rewarded with useful, cogent, and interesting reading that generally removes any need to post a banal comment that only results in a figurative SHG roundhouse to the head.

          1. Mike

            And sometimes we are rewarded with unadulterated crap, but at least we tried.

            I don’t always read the linked stories, but when I do, I find that SHG has excerpted the relevant passages that support his argument.

        2. Kirk Taylor

          There were ten links!
          I went from butthurt to finger hurt.
          I can’t be expected to CLICK ten links, let alone READ them!
          Now I have to do MATH just to add to the snark!




    “While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint.”

    This must be one of the dumbest sentences ever written by a law professor. In a way, that is very high praise.

    All the best.


    1. SHG Post author

      Or maybe not. Or maybe they’ll change their robes to fuchsia. Or maybe they’ll write in Klingon. You never know.

  4. PVanderwaart

    Any opinions on a whether an Amendment to the Constitution eliminating the Senate’s pocket veto on appointments would be a good idea?

  5. MonitorsMost

    Dahlia Lithwick: I know what you’re thinking. “Did he fire six shots or only five…
    Senate Republicans: He tried firing 12 times, we know there is 0% chance you have any bullets.
    Stephen Clark: Oh yeah? But what about my gun?
    Senate Republicans: That’s a flower in your hands. You don’t even have a gun.

  6. DaveL

    While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint.

    Finally, a market for Shepard’s Hunter S Thompson’s Citations

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