Today’s not-that-big SCOTUS nomination story

The leadership of the U.S. Senate has announced that it will not be holding hearings or votes on a nominee for the Supreme Court vacancy opened by the death of Antonin Scalia, and it has the votes to make this stick. All of which makes it a little odd that some publications have been filling acres of news space with biographies of long-shot hopefuls destined not to be picked for a vacancy that is itself likely not to be filled, at least not anytime soon. (Of course, it does advance the White House’s political strategy to maximize press coverage in this way.) Jonathan Adler points out, as have others, that the Senate’s advise-and-consent role does not generate any constitutional duty to consider a nominee, however one weighs the prudential and political considerations for doing so. And Adler also points out that the Senate majority’s “No Hearings, No Votes” position makes it even more inappropriate than usual for some conservatives to start launching smear campaigns against possible liberal names, as by “tarring potential nominees because they once represented unsavory clients” — aside from the fact that (as both conservatives and defenders of the law should know) such smear campaigns are not good for the soul.

More/update: President Obama has now nominated D.C. Circuit chief judge Merrick Garland. Commentary by my colleague Ilya Shapiro (“Chief Judge Garland is assuredly a liberal vote on the most controversial, culture-war issues, but he’s just as surely the most moderate Democratic-leaning jurist under consideration on cases that fly under the radar.”); Stuart Taylor (“I predict that he will be confirmed — after the election, assuming Hillary wins, and after the lame-duck R’s have about 3 seconds to consider their options.”), Jonathan Adler (also: “His record on the D.C. Circuit is one of deference to the government across a wide range of issues,”), Trevor Burrus, and Jim Copland.


  • Sen McConnell – assuming he wants to remain Majority Leader – should schedule the vote for the 2d week of November.

    If Hillary wins, vote to confirm since he’d be better than anyone she will nominate. If the Republican candidate wins, vote not to confirm and await a better nominee.

    Meanwhile, an issue that could get people out to vote for incumbent Republican Senators is created — Do you want Dem Justices deciding on Hillary’s criminal case? It’s a reworking of the Watergate- Nixon case – with the added bonus of providing a reason to discuss Hillary’s firing by the Watergate Committee for ethical violations.

    Or, McConnell can sit on it and give the Dems another “Party of ‘No'” campaign slogan.

  • […] addition to the links yesterday on the nomination of D.C. Circuit Chief Judge Merrick Garland to the vacancy on the Supreme Court, […]

  • I think the end play for Obama is to pull his nomination as soon as it becomes clear Hillary has won. This will deny the GOP of a moderate they could have tolerated and it allows Hillary the chance to put a more liberal leaning SCOTUS. The GOP can’t stall for eight years and by then, she may get a shot at one or two more. Make them look stupid and get what they want. Win. That’s what you get for being seditious not doing your job.

  • @Dan–

    Your scenario only makes sense if the Democrats also take the Senate (a roughly 50% possibility). Otherwise, the newly affirmed Republican majority could say their mandate is as good as Hillary’s. That would be especially true if Trump and a third-party conservative candidate got a combined popular vote total higher than Hillary’s. (This scenario might be the only way the Republicans *can* keep the Senate.)

    Question for a legal expert: is the President’s power to withdraw a nomination immediate and absolute, or could the Senate vote to confirm a willing nominee if they did so quickly?