How Mitch McConnell saved the Supreme Court

0
163

screen-shot-2016-12-05-at-8-52-25-am

WASHINGTON, DC – Conservative Republican Sen. Dan Sullivan had some kind words to say about GOP “establishment guy” and Senate Majority Leader Mitch McConnell, R-Ky.

Sullivan, sitting in his office with a loosened tie after a morning of committee hearings,  pointed out that one of the least understood stories outside of the Beltway is about how McConnell was able to block a President Obama nomination to the US Supreme Court for the rest of his presidency.

When conservative Justice Antonin Scalia died on Feb.13, 2016, it was not only shocking (there was no autopsy after he died at a remote lodge), few believed that Republicans could stand together for nearly a full year and block a nomination for his replacement. It was an election year, after all. Standing together is not always what Republicans do.

They did. And McConnell deserves the credit.

It was a gamble, to be sure, because neither the majority leader nor anyone else could be certain that Hillary Clinton would not be the one choosing the next Supreme Court justice. If she was, it would have likely been a lot worse than the name advanced by President Obama.

A month after Scalia’s death, Obama nominated Merrick Garland, who was the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit.

But McConnell early on said he would not meet with Garland, and that set the tone and pace for the rest of the Senate Majority. Many followed suit. The Huffington Post types went nuts, saying the Senate was defying the U.S. Constitution.

But there’s the rub: The Constitution does not give a timeframe for when a nominee must be voted on, Sullivan explained.

Obama, in nominating Garland, reminded senators of his constitutional duty to nominate a new justice and scolded them about their corresponding constitutional duty to “do their job” and hold a vote on that nominee.

“I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there,” Obama said. “The Constitution is pretty clear about what is supposed to happen now.”

But the Constitution is perfectly silent on the ASAP part of the process. McConnell, well aware that the stakes were high, knew his Constitution.

Sullivan pointed out that  Article II, Section 2 of the Constitution says the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

Nowhere does the Constitution start the clock on such advice and consent, Sullivan said. And, of course, that process only refers to an up and down vote on the nominee. It’s not a rubber-stamp, nor was it intended to be.

In fact, Article I, Section 5 states: “Each House may determine the rules of its proceedings.” Senators, when asked, said they were considering Garland, reading all of his opinions, doing research on him, and they’d continue researching him for a good long time. Maybe until Jan. 20, 2017.

It’s not that uncommon. As legal observers might recall, Democrats blocked the nomination of Miguel Estrada to the DC Circuit Court for over two years because they didn’t like Estrada’s legal philosophy and because he was a President George W. Bush nominee. This is the same thing that the Republican-controlled Senate has returned in favor to President Obama.

Estrada finally had to withdraw his name and move on with his life.

And, as Sen. Sullivan pointed out, it was Democratic Sen. Chuck Schumer in 2007 famously said the Senate “should not confirm a [GW Bush] Supreme Court nominee except in extraordinary circumstances.”

WHO MIGHT BE ON THE LIST

Meanwhile, Donald Trump back in September issued a list of potential nominees, including these:

Keith Blackwell is a justice of the Supreme Court of Georgia, appointed in 2012. He previously served on the Court of Appeals of Georgia. and was a Deputy Special Attorney General of the State of Georgia, an Assistant District Attorney in Cobb County, and a commercial litigator in private practice. Blackwell is a graduate of the University of Georgia School of Law.

Charles Canady is a justice of the Supreme Court of Florida since 2008. He was the court’s chief justice from 2010 to 2012. Justice Canady served on the Florida Second District Court of Appeal and as a member of the United States House of Representatives for four terms. Canady is a graduate of Yale Law School.

Neil Gorsuch is a judge of the United States Court of Appeals for the Tenth Circuit, appointed to the position in 2006. Judge Gorsuch previously served in the Justice Department as a Deputy Assistant Attorney General. Judge Gorsuch was a Marshall Scholar and received his law degree from Harvard. He clerked for Justices Byron White and Anthony Kennedy.

Mike Lee is the junior U.S. Senator from Utah who serves on the Senate Judiciary Committee. He has previously served as an Assistant U.S. Attorney in Utah and as a Supreme Court Clerk for Justice Alito.

Edward Mansfield is a justice of the Iowa Supreme Court, appointed in 2011 and retained by voters in 2012. Justice Mansfield served as a judge of the Iowa Court of Appeals. He teaches law at Drake University. Mansfield is a graduate of Yale Law School.

Federico Moreno is a judge of the US District Court for the Southern District of Florida and a member of the Judicial Conference of the United States. He served as a state and county court judge in Florida. Moreno is a graduate of the University of Miami School of Law.

Margaret A. Ryan is a judge of the U.S. Court of Appeals for the Armed Forces since 2006. Judge Ryan served in the Marine Corps through deployments in the Philippines and the Gulf War. She attended Notre Dame Law School and served as a JAG officer for four years. Ryan clerked for Judge J. Michael Luttig of the Fourth Circuit and Justice Clarence Thomas.

Amul Thapar is a judge of the U.S. District Court for the Eastern District of Kentucky, since his 2007 appointment when he became the first South Asian Article III judge. He has taught law students at the University of Cincinnati and Georgetown and served as an Assistant U.S. Attorney in Washington, D.C. and the Southern District of Ohio. Immediately prior to his judicial appointment, Judge Thapar was the U.S. Attorney for the Eastern District of Kentucky. Judge Thapar received his law degree from the University of California, Berkeley.

Timothy Tymkovich is the chief judge of the United States Court of Appeals for the Tenth Circuit, appointed in 2003. He served as Colorado Solicitor General and graduated from the University of Colorado College of Law.

Robert Young is the chief justice of the Supreme Court of Michigan, appointed in 1999, and became part of a majority of justices who embraced originalism and led what one scholar described as a “textualism revolution.” Justice Young was a judge on the Michigan Court of Appeals and is a graduate of Harvard Law School.

The list so far includes:

1. Keith Blackwell

2. Charles Canady

3. Steven Colloton

4. Allison Eid

5. Neil Gorsuch

6. Raymond Gruender

7. Thomas Hardiman

8. Raymond Kethledge

9. Joan Larsen

10. Mike Lee

11. Thomas Lee

12. Edward Mansfield

13. Federico Moreno

14. William Pryor

15. Margaret A. Ryan

16. Amul Thapar

17. Timothy Tymkovich

18. David Stras

19. Diane Sykes

20. Don Willett

21. Robert Young

Meanwhile, Merrick Garland’s nomination is, according to several on The Hill, dead on arrival under President-elect Trump.