The nomination of a justice to fill the late Antonin Scalia’s seat on the U.S. Supreme Court was the shadow issue of this election. The seat that has sat empty since Scalia died in February of this year looks like it will actually be filled by President-Elect Trump, despite President Obama naming Merrick Garland as his nominee eight months ago and despite the Senate’s constitutional duty to “advise and consent” on Obama’s nominee. But is there a way Obama could still get Garland on the court during the last two months of his presidency? I think the answer is yes, but before I get into how that would work, let’s look at how we got to where we are.
Where We Are
Justice Scalia died unexpectedly (or as unexpectedly as an 80 year old can die of natural causes) on February 13, 2016. Within hours of his death, Senate Majority leader Mitch McConnell said “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” There is no precedent for such a decision.
On March 16, President Obama named Merrick Garland as his nominee. Garland in many ways was a surprise pick. At 63, he is one of the oldest nominees in modern history and, unlike Obama’s previous two SCOTUS appointments, is a white man. But Garland is also seen as fairly moderate and has gathered much support from Republicans in the past. In 1997 Sen. Orrin Hatch said Garland was “as good as Republicans can expect” as a D.C. Circuit nominee from a Democratic president and in 2010 called him a “consensus nominee” to the Supreme Court. After Garland’s nomination, McConnell reiterated that the Senate would not hold hearings on the nominee, and he has kept that promise. The nomination has languished and Garland has waited 238 days (so far) to be confirmed. The longest wait prior to this was the 125 days Louis Brandeis waited a century ago.
The issue of Garland’s nomination hung quietly over the election, drowned out by issues like trade, terrorism, immigration, Clinton’s use of a private email server, and Trump’s myriad controversies. Garland’s nomination was only mentioned once in the debates, basically as an aside, when Clinton said that she “hope[d] that the Senate would do its job and confirm the nominee that President Obama has sent to them.” But many voters viewed this Supreme Court opening—and the possibility of several more in the next four years given the advanced age of three current justices—a crucial issue in the election. In exit polls 21% of voters called Supreme Court appointments the most important factor in their decision and those voters overwhelmingly supported Trump, 57 to 40 percent. The Supreme Court opening may very well have been the issue that got many of the more mainstream conservatives who disliked the volatile Trump to voted for him in the end, pushing him to a close victory in a few key swing states.
What Happens Now
As I mentioned in the opening, the most likely scenario is that the Senate does not take up the nomination, the seat remains open through the inauguration, and Trump names a new nominee who is quickly confirmed by the GOP-held Senate.
But I think Obama doesn’t actually need the Senate to vote to confirm; he can take their silence to mean consent. In a concurrence in an obscure 1994 Supreme Court decision (United States v. Irvine), the late Justice Scalia included an obscure latin maxim: Qui tacet, consentire videtur or “One who keeps silent is understood to consent.” The maxim is little known outside legal circles, but in many circumstances under U.S. law, where the situation calls for an objection, the failure to respond is the same as consenting. Does this apply to SCOTUS nominees if the Senate fails to act on Obama’s nominee? I think the answer is yes.
Here’s the nerdy Con Law argument. The relevant Constitutional provision is the Appointments Clause (Art. II, § 2, cl. 2.), which says, in relevant part: “The President, … by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” The Constitution does not say what constitutes “consent of the Senate,” but throughout history that has been a confirmation vote. But there is no constitutional decree, no statute, and no case law that says a vote is necessary for confirmation. The only Senate Rule on the subject states that “When nominations shall be made by the President of the United States to the Senate … the final question on every nomination shall be, ‘Will the Senate advise and consent to this nomination?’” But nowhere does the Senate in its own rules state affirmative consent by vote is the way a nominee can be confirmed. And, although the Senate has the power to make its own rules, that power, arguably, does not extend to defining what consent means in the Appointments Clause. So if the President makes a nomination, and the Senate fails to act, Qui tacet, consentire videtur. The nominee is confirmed by the Senate’s silence.
Obama would simply issue a written commission to Garland and Garland could be sworn in to the Supreme Court. There are two oaths that Garland would have to make: the Constitutional Oath (to uphold the Constitution) and the Judicial Oath (to administer justice). Although the Chief Justice normally administers the two oaths of office (something Justice Roberts might be unwilling to do), pretty much any official could do it. In 1967 Associate Justice Hugo Black administered the Constitutional Oath to Thurgood Marshall and the clerk of court later administered the Judicial Oath. In order for this to happen, Obama would have to decide that this last fight would be one of the largest legacies of his presidency. Garland would have to agree to be even more of a political football than he is. There would of course be a lawsuit, and who knows how that would turn out. The D.C. Circuit court leans liberal, and a 4-4 split in the Supreme Court would keep the Circuit Court ruling in place, but Obama’s gambit could easily be viewed as unconstitutional, even by a liberal judge, and might be swiftly overturned.
I’m no Constitutional scholar (like, you know, Obama), but I did get the highest grade in my 1L Con Law class, so I think my argument is at least good enough that it could be worth an Obama Hail Mary. I wouldn’t be on it happening, but I also would not have thought that a Republican Senate could hold a Supreme Court seat hostage for a year and face absolutely no repercussions (political or otherwise).