Can the Senate confirm Merrick Garland (or Hillary Clinton) to a life-time seat on Jan. 3d?

David Waldman at DailyKos floats this procedural twist, not for an almost worthless one-year recess appointment to the Supreme Court, but a full permanent appointment. He argues that for a few minutes… or a few hours… on Jan. 3d, the Senate will have a majority of 34 Democrats and 32 Republicans before the newly elected/re-elected Senators are sworn in, and VP Biden could preside over a rump Senate. According to Waldman, this new “Senate” could create new procedural rules in that moment, especially eliminating the cloture/filibuster rules. Barack Obama will still be president with the power to re-nominate Garland. Or as I’ve suggest, Obama could nominate Hillary Clinton, to make her Justice Clinton an act of poetic justice.

However, Sean Davis, an expert on Senatorial procedures and a former Senate aide, first turns to the Constitution to find a major textual problem with this approach. The Twentieth Amendment states that the terms of the new Senators begin immediately when the old Senators’ terms expire:

“The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”

I’ll add that this amendment was drafted and ratified to deal with the problem during the Great Depression that FDR was elected in the middle of an economic crisis with a mandate for the New Deal, but Hoover’s term continued until March under the old timeframe, leaving a lame duck in charge and stalling democratically approved solutions. The idea of the amendment was 1) to rely on a fixed constitutional date, rather than congressional statute, which implicitly makes the dates less able to be politicized, and 2) to speed up and streamline the transition to a new Congress and a new President. Based on the text and the purpose of the Twentieth Amendment, the new Senators become Senators immediately at noon on Jan. 3d. There is no gap in time when the new Senators are not full voting members of the Senate, regardless of the oath.

Second, Davis also points out that there is a contradiction in Waldman’s argument. Waldman argues on the one hand that the Senate is not a continuing body, so it can re-write new procedural rules at noon on Jan. 3d. But if it is not a continuing body, what power does it have as a rump Senate without the new Senators? It only becomes a legitimate new Senate with the new Senators included. Waldman’s rump Senate of 66 Senators is not a Senate yet at all if it’s not merely a continuation of the old Senate. Ultimately, the Supreme Court would have to rule on the legality of Garland’s confirmation in the next year, and my bet, given these observations, would be an 8-0 ruling that it would be invalid (Garland obviously would need to recuse). Then Garland would be off the Supreme Court, and off the important D.C. Circuit, and Trump would get to fill those two seats anyway. Zero steps forward, two huge steps back.

Davis cites a number of established Senate rules that prohibit Waldman’s procedural steps, and he makes a strong argument that the Senate rules are continuous from one Congress to the next. That’s an important point for both sides. Democrats desperately need to preserve the filibuster rule for the next four years (and maybe longer). The filibuster will preserve the Senate Democrats’ power to block Trump’s SCOTUS nominees  and protect key parts of ObamaCare, and who knows what else.

So I’d add my third point: If Waldman is right that the Senate can write new brand new procedural rules, the filibuster would be vulnerable to elimination. And if Biden uses new rules to ram through Garland, the GOP Senators would kill the filibuster. McConnell might kill the filibuster anyway, but I think that possibility is low right now. The chances of losing the filibuster go from low to 100% if Biden pushes through Garland. I’d rather have the Democrats use the filibuster as aggressively as the Republicans have, rather than lose the filibuster in return for the relatively old Merrick Garland. Since when is a pro-death penalty conservative nominee worth such a price from the left?

Finally, a fourth point: we don’t want Biden to risk so much political capital and so much support by pulling this move. Biden may be a good nominee to run against Trump in 2020. I’m not suggesting he is the best option, but at this stage, he is one of our options with the gravitas, experience, and appeal to the Midwest working class to defeat Trump. That might be the best reason not to pull this move: defeating Trump is more important than any single office, seat on a Court, or piece of legislation.





Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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