Eleanor Clift: Will Obama Ever 'Fess Up to His Merrick Garland Mess?

[EffieBlack]

240. I've already done my research on this. I know what I'm talking about.

The Supreme Court's 2016-2017 term began on the first Monday of October 2016 and completed at the end of June 2017. The 2017-18 term began the first Monday of October 2017 and ended last month last month. The Court usually hears no cases after April and does no business between July and early October.

If President Obama had appointed Garland between January 3 and January 20, 2017, Garland would have served until December of 2017. But he would not have been able to rule on any cases argued between October and January since he had not participated in the oral arguments. That means he would only have been able to rule on cases the Court heard between January and April. And he wouldn't have ruled on any cases he heard in October through December since he would not be around for the cases to be decided.

Moreover, the Chief Justice has a great deal of say over the Court calendar. It is highly unlikely that Justice Roberts would have allowed any case of serious importance to be decided by a Court with a temporary justice. Instead, any such case that arose would probably have been put off until a permanent justice was confirmed and sworn in.

And, even if Garland managed to hear and rule on an important case, if he tipped the outcome in a way that the conservatives didn't like, the losing party would have petitioned for a rehearing before the new, full Court and such a petition would have been granted, bringing the case back to be reheard before the Court with the Trump-appointed justice.

As I said, a recess appointment would have been a complete waste of time.

And I'm familiar with Diskant's argument, but it is completely spurious. The Senate's failure to act is not and never would be considered a "waiver" that allows a President to unilaterally install nominees in positions. It is a failure to consent, an entirely different thing. The Senate frequently fails to move forward on nominations and just lets them die - that does not mean the president can just give the nominee the job.

And, as I also said, all of this armchair, Monday-morning quarterbacking is ridiculous. President Obama knew better than anyone what all of his options were and made rational choices based on reality, not on what some activists thought he should do after the fact. And, considering most of the activists doing the whining didn't bother lifting a finger to help Garland get confirmed, they really need to just go somewhere and sit down.