The Left's Indecent Proposal for Appointing Garland

The Left's Indecent Proposal for Appointing Garland
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A drumbeat on the left is demanding President Obama brazenly install Merrick Garland on the Supreme Court Tuesday, using his recess appointment power. He won’t, because he can’t: The Senate is not in recess. Unfortunately, Obama’s adherence to the Constitution and rule of law is going to create a false narrative that timid Democrats always get bulldozed by ruthless Republicans. If the left internalizes that narrative, it risks sparking a race to the ethical bottom.

The argument for plopping Garland on the court rests on two flawed premises. One, an aggressive interpretation of the law exists that allows for it. Two, Republicans already flouted the Constitution by denying Garland a hearing. Besides, if the situation were reversed, Republicans would do it. Why should Democrats be the only ones who play by the rules?

As envisioned by the New Republic’s David Dayen, and echoed by New York magazine’s Ed Kilgore, Obama could only make the recess appointment on Tuesday. The 115th United States Senate will be gaveled into session, and there is, however infinitesimal, “metaphysical” space between the end of the previous Senate and the start of a new one. This fleeting “inter-session” recess gives Obama the opening to wield his recess appointment power, bestowing Garland on the court without the need of Senate confirmation.

The lone historical precedent for inter-session recess appointments is Teddy Roosevelt, who in 1903 had a friendly Senate majority quickly adjourn and reconvene to thwart a minority obstructing more than 150 appointments. The New York Times declared that the move “appears preposterous.” But the appointments were never challenged in court, encouraging Appoint Garland proponents to claim that there’s no legal barrier to Obama replicating TR’s brashness.

Yet there is. As law professor Jonathan Adler made plain in the Washington Post, a 2014 Supreme Court decision – with a controlling opinion written by Justice Stephen Breyer and joined by all of the court’s liberals – specified that any recess “lasting less than 10 days is presumptively too short” for presidential appointment power to be valid. In the court’s view, be it intra-session or inter-session, “‘recess’ should be practically construed to mean a time when the Senate is unavailable to participate in the appointments process.”

Dayen argued that the part of Breyer’s opinion relating to inter-session recesses is legally irrelevant because the matter being adjudicated in 2014 involved intra-session appointments (the Senate had been nominally keeping its doors open when taking breaks to prevent Obama from making recess appointments, and the court agreed that was the Senate’s right). However, all the justices who signed on to Breyer’s opinion are still on the court. They’re not going to contradict their own reasoning from two years ago.

But who cares about legal niceties when Republicans, capping their strategy of furious resistance to the Obama agenda, just trampled on historic precedent and refused to give Garland a hearing? Dayen contends that, “given how Republicans relentlessly obstructed his efforts for eight years, [Obama] would be completely justified in playing one final trump card.” Kilgore adds that “the GOP paid no price for this deeply irresponsible course of action. … [N]ow, Republicans expect Obama to play by the rules they so often disregarded and give way to the new regime gracefully.”

No doubt congressional Republicans have played rough in the Obama years, with wanton filibustering, threats of default on debt obligations and even an attempt to undo the president’s signature legislative accomplishment via government shutdown. But these are violations of norms and traditions, not rules. The demand that Obama now ignore the Constitution and the Supreme Court with a plainly illegal recess appointment is not a demand to match Republicans in their ruthlessness; it’s a demand to go lower into the gutter.

Why expend energy debating the recess appointment proposal when there is little chance Obama would even consider it? Because if the left treats the idea as legitimate, it also creates a false narrative of the Democratic Party as patsies, while weakening the ability of the left to challenge Donald Trump should he snub the Constitution.

“Democrats, in short, bring a butter knife to a gunfight,” concludes Dayen. “They may be correct on the merits that institutional norms allow the government to function properly. But as long as Republicans don’t care about such niceties, that respect is equivalent to surrender.”

But it’s wrong to suggest Democrats tie their own hands with Marquess of Queensbury rules. In 2013, Senate Democrats countered Republican filibusters on Obama’s appointments with the so-called “nuclear option”: breaking precedent and changing Senate rules on a party-line vote to end filibusters on non-Supreme Court executive appointments. Because of that audacious maneuver, Obama has been able to flip the federal judiciary, taking the number of the 13 federal appellate courts with Democratic majorities from one to nine. Obama also responded to Republican obstructionism on legislation with a slew of executive actions, pushing the legal bounds enough to attract judicial pushback.

Still, there are lines Obama should not, did not and will not cross. While conservatives complained that Obama was disregarding the Constitution in his use of executive power (conveniently glossing over the previous Republican administration’s comfort wielding the presidential pen), in reality Obama respected every judicial ruling that blocked him. Our system of checks and balances has remained intact. This is why Obama won’t illegally appoint Garland. Doing so would flagrantly violate the Supreme Court’s decree on recess appointments, upending the system our Founders designed and sparking a bona fide constitutional crisis.

Beyond holding basic respect for the law, Democrats must also maintain moral authority to best oppose Trump if he ever – as many Democrats suspect – crosses constitutional or legal boundaries. A political system in which both parties ignore the rules is a system that allows those without scruples to act with impunity, using their opponent’s transgressions as justifications for their own behavior. Without occupying the high ground, Democrats will lack the tools to tar Trump as uniquely unethical.

Progressives shouldn’t condemn Obama if and when he refuses to twist the law for his own ends. They should praise him for governing honorably in the face of relentless obstruction. If they buy the baseless argument that Obama timidly surrendered the battle for the Supreme Court, they will be legitimizing illegal behavior and defining deviancy down. Rest assured, Trump will take full advantage.

Bill Scher is executive editor of LiberalOasis and a contributor to RealClearPolitics. He can be reached at or follow him on Twitter @BillScher.

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