Bench Memos

Law & the Courts

Senator Jeff Merkley, D-Cuckooland—Part 1

In an op-ed in today’s New York Times, Oregon senator Jeff Merkley urges his fellow Senate Democrats to filibuster the Supreme Court nomination of Judge Neil Gorsuch and (as the title of his print piece puts it) “make the Republicans go nuclear.”

I hope very much that Democrats follow Merkley’s foolish advice, for a filibuster of the Gorsuch nomination is the best possible set-up for Senate Republicans to abolish the filibuster. Abolition of the filibuster would pave an easy confirmation path for President Trump’s next nominees to the Supreme Court. And the prospect of that easy path would in turn encourage the White House to make bolder picks than it might otherwise do.

Let’s march through Merkley’s argument:

1. Merkley’s major claim is that “Senate Republicans are in the midst of pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court.” Merkley repeats the “theft” charge two more times and uses “crime” three times and “steal” twice.

Merkley’s incendiary rhetoric is as irresponsible as it is idiotic. This Wall Street Journal house editorial yesterday, “The Myth of the Stolen Supreme Court Seat,” nicely answers Merkley. But let me highlight a few points.

a. When President Obama’s nomination of Merrick Garland was pending, Merkley claimed that “the Constitution requires” Senate Republicans “to hold hearings and a vote on his nomination.” It appears from his screed (“crime against our Constitution”) that he continues to hold that position.

Merkley’s constitutional claim is (to borrow from law professor Erwin Chemerinsky’s vocabulary) “silly” and “obviously fatuous.”

The Appointments Clause (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (Indeed, the Framers rejected the alternative of requiring the Senate to vote down a nomination in order to block it.) It also doesn’t require Senate hearings on anything. (It’s entirely through the operation of the Senate’s plenary rulemaking power that the Senate has committees at all and empowers those committees to hold hearings.)

The Appointments Clause applies to Supreme Court nominations in exactly the same way that it applies to other presidential nominations. Senate practice has routinely defeated nominations by inaction. So anyone who contends that the Constitution somehow required “hearings and a vote on [the Garland] nomination” has zero basis in text and is arguing against longstanding practice. That practice of defeating nominees by inaction includes what Democrats did to lots of President George W. Bush’s judicial nominees in 2007 and 2008, after they regained control of the Senate.

b. Even if Merkley tried to retreat to a more modest claim that Republicans acted contrary to accepted norms, that claim would fail. The non-existence of any such norm is shown by Joe Biden’s carefully prepared Senate floor statement way back in 1992 when he charted exactly the course that Senate Republicans followed and by Chuck Schumer’s similar threat in mid-2007, well in advance of the election year. (The fact that no vacancy arose in either instance is irrelevant to the proposition that the statements show that no such norm existed.)

Further, President Obama’s former White House counsel has candidly acknowledged that, if the situation were reversed, she would have recommended to Senate Democrats the same course of action that Senate Republicans took. Political rhetoric aside, I can’t imagine that anyone who knows the process really thinks that Democrats would have acted differently. If Merkley had an ounce of capacity for self-reflection, he would recognize that he would have been a fervent cheerleader for that course.

2. What’s all the more amazing is the utter incoherence of Merkley’s call for a filibuster of the Gorsuch nomination.

Senator Merkley, if you genuinely (if very stupidly) believe that the Constitution required Senate Republicans to have a final vote on the Garland nomination, how can you in good conscience propose a filibuster designed to prevent a final vote on the Gorsuch nomination? You either spout constitutional claims that you don’t believe, or you propose to act in violation of what you understand to be your oath to the Constitution.

More in Part 2.