How to Fill That Empty Seat on the U.S. Supreme Court

President Obama’s nominee to replace Antonin Scalia on the Supreme Court bench is a solid, moderate choice. It’s also a canny political one.

When Merrick Garland was nominated to serve on the D.C. Court of Appeals 19 years ago, eminent conservative Republicans from Orrin Hatch and Chuck Grassley to the late Strom Thurmond praised him in the highest terms.

Obama could have picked a groundbreaking candidate such as Attorney General Loretta Lynch, who would have been the first black woman to serve on the highest court; or Garland’s colleague on the D.C. Circuit, judge Sri Srinivasan, a South Asian American. The President could have nominated an in-your-face liberal such as Elizabeth Warren.

All three were mentioned as possibilities, and are undeniably qualified for the job. Over the past month, Facebook friends have jokingly suggested Hillary Clinton or Anita Hill (remember her?). All of these choices would likely have encouraged the Republican opposition to dig in its heels even harder.

As a deputy assistant attorney general, Merrick Garland was involved in prosecuting the terrorist bombings in Oklahoma City and the Atlanta Olympics, and the Unabomber Ted Kaczynski. He voted with the appeals court majority that banned Orca breeding at SeaWorld after the killing of trainer Dawn Brancheau by an Orca in 2010 (a tragedy I wrote about on this blog at the time).

Given his merits, Judge Garland seems the perfect choice to embarrass the GOP over its unprecedented strategy to refuse even to hold hearings on anyone Obama would nominate. None of their excuses holds water:

• It’s an election year and Obama is a lame-duck President … but one-third of past Presidents have appointed federal-court judges in their final year in office.

•  “The American people should have a voice” in the selection … but a majority of Americans already voted twice for Obama.

• Article 2, Section 2, Clause 2 of the Constitution states that the Senate should provide “Advice and Consent” to confirm the President’s choice, but sets no time limit … however, the justices on the court right now took an average of 71 days to confirm, and the longest ever was Justice Louis Brandeis in 1916 at 125 days, so delaying until Obama leaves office would set a new record that’s more than twice that long. Plus, this would leave a 4-4 deadlock on the bench for most of next year, which means many disputed lower court rulings would remain in place and un-reversed.

Given that a majority of the American public wants to see a vote, the longer Republicans hold off, the more likely their party is going to lose congressional seats as well as the White House in November. Donald Trump, Ted Cruz, and John Kasich obligingly chimed in immediately yesterday to declare the Senate should not proceed.

Garland is looking like a sacrificial lamb in the service of the election, and for that he should be pitied as well as admired. Did he accept the nomination knowing the odds he might never land what has to be a dream job?

The nominee could still be seated eventually, if a Democrat wins. David Gergen has even suggested if the heat gets too high and the polls turn against the Republicans in September, they might change their minds and regard Garland as a highly attractive option. The more certain it appears the Democratic Presidential nominee will win, the more the GOP might decide to confirm Garland hastily, given the fear that the new President would substitute a more liberal nominee.

The gamesmanship doesn’t end there, however. Last week, before the Garland nomination was announced, I talked with two lawyer friends of mine -- one a practicing attorney, the other a law professor -- about Obama’s options, and heard some even more intriguing ways for the sitting President to win this war of nerves.

Say a Republican takes the White House but the Democrats win a majority in the Senate, the practicing attorney said. Obama has a Democratic Senate for 17 days between Jan. 3 when the new members take office, and Jan. 20 when his term ends.

“Imagine that on January three President Obama nominates Hillary Clinton to the Supreme Court. He sends the nomination to the Senate. Vice President Biden, who is the president of the Senate, declines to send the nomination to the Judiciary Committee and instead calls an immediate vote on the floor of the Senate. In theory, and with a lot of bending of the rules from the former seventh session, the Senate could confirm the Democratic nominee in that 17-day period, leaving the incoming president with no vacancy to fill.”

The law professor said this theory was sound, but depended on a Democratic majority and some hard pushing of the agenda and rules. Alternatively, if a Democrat takes the White House, the issue becomes moot unless the GOP wants to try to delay an appointment for the next four years.

Once Obama has announced a nomination, the professor went on, he could try to assert that the Senate is failing and refusing to carry out its Constitutional duty to provide “Advice and Consent.”

“A writ of mandamus is a lawsuit that seeks a court’s intervention to force a governmental official or agency to do something that is required of that official or agency.  In Oregon, it can be filed directly in the Oregon Supreme Court; I assume that the same is true in federal court.

“Of course, the Court could refuse to hear the case (but I would guess that it would get the required four votes) or it could deny the writ. I would like to see how eager the brethren are to have a new member and how repulsed they are at this political attempt to keep the Court at less than full strength (and unable to reverse lower court decisions when its members are split, four to four).

“Even a win could result in perfunctory hearing and a vote against the nomination, or a filibuster.  Win or lose, it raises the issue and should embarrass the Republican leadership, if that is possible.”

As delightful as these two scenarios sound, they’re unlikely to happen. My legal layman’s guess is that McConnell, Grassley, and company will realize how foolish they’re looking, and after a fair delay to show they’re “serious,” they’ll generously offer to hold hearings after all, and draw them out through the elections; perhaps even vote to reject Garland shortly before the ballots are cast.

A Democrat will be elected President in November (because a majority of the nation will rise up against Trump once he’s out of the primaries, and any other GOP presidential candidate will be unable to whip up enough support to beat either Clinton or Sanders), and the Senate -- whether altered to a Democratic majority or still Republican -- will finally confirm Garland because the new President is more likely to nominate someone more liberal, or await the next candidate if Garland has already been rejected.

How bloody and drawn-out the process turns out to be will depend entirely on what the voters do about the 34 Senate seats up for grabs this fall. Twenty-four are held by Republicans; McConnell is not among them, but Chuck Grassley, John McCain, and Rand Paul are some of the familiar names who are.

Democrats need to take only 4 or 5 seats to gain control of the Senate. Perhaps what citizens who want a more liberal climate in the U.S. should do is donate money to Democratic candidates in those disputed states, and write letters to newspapers there to urge their fellow citizens to vote out stubborn incumbents.