We should have raised holy hell about Garland.

[Jeebo]

That was in the middle of a presidential campaign, but we should have incorporated that issue into the campaign. We essentially allowed that outrage to happen and we should have raised such an incredible ruckus about it that the Turtle could not have gotten away with simply ignoring Merrick Garland.

I forget whether it was here on Democratic Underground or MSNBC or one of the progressive talk radio shows I listen to, but somebody said that because the Garland nomination just sat for months without hearings or a vote, Obama could have just said, okay, the Senate has an obligation to confirm or deny confirmation to my nominee, and because they haven't done either, because of their inaction on my nominee, Justice Garland, you can go ahead and take your seat on the Supreme Court now.

I think a president or governor can just let a bill sit on his/her desk, neither signing nor vetoing it, and eventually it becomes law without a signature. This would have been a similar situation, a nominee instead of a bill.

I wish, A, that we had raised holy hell about that outrageous situation, and B, that after a few months of inaction, Obama had just gone ahead and told Garland to take his seat.

-- Ron

[msfiddlestix]

1. yeppers. this is another major misstep on our part.

I wonder if we will learn from it?

[Skittles]

2. NO SHIT

another big fucking error, along with "WE NEED TO LOOK FORWARD"

[FBaggins]

3. "We" didn't want to

By “we” I mean DU.

We were certain that Clinton was going to win and give use someone well to the left of Garland (who was initially proposed by a Republican).

Indeed… the debate was over how to keep the lame duck Republican senate from confirming Garland once Trump lost.

[In It to Win It]

35. I was certain Trump wouldn't make it through the primaries

But then he did, and I promptly exited the certainty business in 2016. Once he became their nominee, there should no certainty at all.

I think they would confirmed Garland if Trump lost because of the fear that Clinton would have nominated someone more liberal than Garland. Garland was the probably the most centrist choice they were going to get.

[d_b]

4. Gore.

All of it.

[MerryHolidays]

5. I think it was Glenn Kirschner who suggested this recently

Specifically, he said that President Obama should have taken the position that the Senate waived its "advice and consent" right under the Constitution by refusing to bring the Garland SCOTUS nomination to a vote and let McConnell challenge it before the courts.

That makes much more sense than not doing it, as far as I can tell.

[onenote]

11. Obama wasn't about to make such a frivolous argument.

[MerryHolidays]

14. What exactly is frivolous? A former Assistant US Attorney suggested it

[onenote]

15. Kirschner is not a constitutional expert. And he's mocked for mis-stating basic legal principles

There is no constitutional requirement that the Senate vote on, let alone hold hearings, on any Presidential appointments. Throughout the history of the nation, Congressional sessions have ended with presidential nominations that require "advise and consent" having not been acted upon.

Kirschner has become something of a joke in legal circles. One example -- his insistence that Trump's pardon of Flynn was illegal and void -- notwithstanding the fact that the Supreme Court has made it abundantly clear that the President's pardon power is, as a constitutional matter, unlimited.

https://lawandcrime.com/awkward/msnbc-legal-analyst-spreads-misinformation-about-pardons-and-the-u-s-constitution-following-flynn-reprieve/

[MerryHolidays]

23. President Obama potentially COULD have made a recess apointment of Garland on January 3, 2017

Between the old and new Congress.

Of course, this would have been scorched-earth tactics, but, in hindsight, that was what was needed. Garland could have served as an Associate Justice for nearly a year in 2017.

Mind you, I am not saying this would have been easy or ultimately workable. But, calling this "frivolous" is not appropriate. There was an option, but President Obama chose not to take it.

I have NO doubt that, if the scenario were completely reversed, the Republicans would not have hesitated to do this to get their way.

https://newrepublic.com/article/138787/obama-can-put-merrick-garland-supreme-court

[onenote]

43. It is a frivolous argument

The Supreme Court, with Breyer writing the opinion, put a dagger in the idea of a recess appointment being made during the momentary "recess" between the end of the 114th Congress and the start of the 115th Congress:

"we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well."

The article linked in your post suggest that Breyer's statement was mere "dicta" as applied to inter-session recesses. That's true, but it's also true that none of the other Justices indicated disagreement with that dicta in a concurring opinion. This article pretty much takes apart the argument made in the OP-referenced article: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/the-real-reason-president-obama-wont-recess-appoint-merrick-garland-to-the-supreme-court/

Moreover, it would have been a net negative. A recess appointment expires at the end of the next session of Congress. At best, Garland could have served until the end the first session of the 115th Congress (January 3,2018). But it could have been shorter. The Republican-controlled Senate and House could have adjourned on January 20 after Trump was inaugurated, and that would have ended Garland's recess term. Plus, by giving Garland a short term nomination, Obama would have been giving Trump the opportunity to replace Garland with a lifetime appointee to the DC Circuit.

In short, it's a frivolous idea because it would have been a net negative.

[MerryHolidays]

44. Risky? Definitely. Frivolous, not at all.

For every article that goes one way, there are other articles going the other. It's not a slam dunk.

But, it's all hindsight. It would have been a drastic measure and short-lived at best.

[FBaggins]

45. No... it's frivolous

Note that this isn’t an “article” that goes one way.

It’s a SCOTUS ruling on the relevant question (and not one written by the conservatives)

Obama had not option of getting around the Senate. And if by some miracle he did… recess appointments are temporary. Absent a Clinton win, Gorsuch was headed to the court.

[MerryHolidays]

46. You are citing possible dicta from the Canning case as controlling on the length of the recess

I don't think it was relevant to the holding and could ARGUABLY be considered dicta. It would have been a substantial enough issue to go to the courts. Let McConnell explain there why he refused to allow the Senate to undertake its "advice and consent" obligation/right (which, itself, would be a justiciable issue).

If it was so definitive that this was "frivolous" why did a Congressional member of the Trump transition time propose a constitutional amendment to do away with this POSSIBLE loophole when Trump "won" the 2016 election? It wasn't certain. That's why an amendment was proposed.

Again, it's only in hindsight that this tactic would have been employed. I never thought the Trump reign of error and terror would be as bad as it was. But when the other side plays to kill at every move, the Ds need to do the same and take NO prisoners on anything going forward.

Keep in mind that Chief Justice Earl Warren was a recess appointment to SCOTUS by Eisenhower. It's been done before. Yes, Garland would have only been there for a short time (year or less), but, in hindsight, it's not "frivolous" to fight fire with fire.

[onenote]

53. and would it be worth giving up a DC Circuit seat to Trump?

[FBaggins]

54. Sorry... that's wild spin

Don’t think I’ve ever seen what Lexis Nexis calls the “rule” from the ruling called dicta instead.

There’s really no spinning this. The core question was whether a president could use the recess appointment power to get around a Senate that didn’t want to confirm an appointee that they know about. On that question the court was unanimous.

And again… even if some miracle occurred and they all changed their minds… we would still have Gorsuch today.

On edit - onenote’s reply above adds even more weight to the argument. Garland couldn’t go back to the DC Circuit and would have been replaced by Trump

[mobeau69]

6. YES!

[Funtatlaguy]

7. I did. I remembered begging for President Obama to

Talk about it non stop every day until Garland got a hearing.
Everyone told me I was overreacting.

[FoxNewsSucks]

8. Obama could have recess-appointed Garland.

Then at the end of his term, that would have ended. But he would have at least been on the SCROTUS for a couple years, and the news angle would have been different.

But he didn't. So Moscow Mitch got his way. Again.

[onenote]

12. No he couldn't. That would require a recess. And the Republicans controlled the Senate.

[Samrob]

16. People choose to forget what they didn't already understand. nt

[MerryHolidays]

24. There was a indeed a recess on January 3, 2017 between the old and new Congress

While BHO was still President.

See post 23 (mine).

[BeyondGeography]

9. President Obama didn't mention Garland once in his speech at the 2016 convention

It was political malpractice.

Garland is a stain on his legacy. He was an uninspired and misguided choice to begin with. The notion that an older, moderate nominee would play well with persuadable R Senators was DOA. Once the resistance levels became clear, Obama left it to Hillary to win the election and get things to the finish line. President Obama did nothing to leverage the issue politically in the campaign, and even if he had he was hamstrung by choosing someone who did not organically mobilize any portion of our base.

The President didn’t exactly cover himself in glory with RBG either. She was stubborn and determined to stay on as long as Stevens (which was insane tbh), but the extent of Obama’s efforts to get her to consider retiring when we had control of the Senate was one itty bitty lunch conversation where the topic was only peripherally addressed.

On the issue of the Supreme Court Democrats have been severely outplayed and outfought by the Republicans for many years. Barack Obama is unfortunately a significant part of that story.

[Jeebo]

10. I heard that she was going to retire.

I heard somewhere that Ruth Bader Ginsburg was intending to retire after Hillary Clinton took office, and let Hillary appoint her successor. And then, of course, the awful 2016 election night result upset that applecart. Don't know if that is true, but I suspect it is.

Incidentally, BeyondGeography, you used used two abbreviations. I understand that DOA means dead on arrival, but what does tbh mean? I have no idea. This is why I hate abbreviations. They obstruct understanding. Jeopardy actually has an Internet Abbreviations category that the contestants don't always know. I wish people would just spell everything out clearly.

-- Ron

[BeyondGeography]

21. To be honest

Point taken.

[onenote]

13. So I take it you wanted Obama to publicly shame RBG?

[BeyondGeography]

22. You know what's really sad?

Trump, fuckwad that he is, had a much better plan for achieving his goals for the Court than did Obama.

Not only did he have a plan (which Obama didn’t) it was actually effective and sensible. In the case of Anthony Kennedy, who was persuaded to retire while still healthy at the age of 81, there was no public shaming, just basic behind the scenes work over a 17-month time period that ultimately paid off:

Inside the White House, however, news of Kennedy’s retirement didn’t come as a shock. In fact, as The New York Times reports, the 81-year-old’s announcement was the culmination of a carefully orchestrated 17-month campaign by the Trump administration to remake the Supreme Court before the 2018 midterms, when there is an outside chance that Republicans could lose their majority. For conservatives, Kennedy’s seat was seen as one of the keys to rolling back abortion rights—on the campaign trail, Trump pledged to appoint a justice who would overturn Roe v. Wade. But first, Trump had to demonstrate to Kennedy that he could be trusted to nominate quality jurists to the Supreme Court. The campaign was multifaceted: over the course of several months, Trump systematically nominated three of Kennedy’s former clerks for plum judicial posts. While he criticized other, more conservative members of the court, he lavished praise on Kennedy—despite the fact that the justice has been pilloried by the right for his votes on social issues. And he cultivated a relationship with Justice Kennedy’s son, Justin, who worked closely with the Trump Organization in his role at Deutsche Bank as the global head of real-estate capital markets, according to the Times.

The overtures continued outside the White House. Ivanka Trump reportedly took Kennedy to lunch shortly after the inauguration and brought her daughter Arabella Kushner to the Supreme Court to hear oral arguments as special guest of Kennedy shortly after. Republican Senator Chuck Grassley, who serves as chairman of the Senate Judiciary Committee, went on conservative commentator Hugh Hewitt’s radio show last month to implore the court’s aging judges, “If you’re thinking about quitting this year, do it yesterday.”

Perhaps most important, Trump used the nomination of Neil Gorsuch to demonstrate to Kennedy how his own legacy could be preserved. He ensured that Kennedy was involved in swearing in Gorsuch, who used to clerk for him—something that gave Kennedy “virtually parental pride,” Turley told me, describing Kennedy’s obvious delight at the ceremony’s after-party…

https://www.vanityfair.com/news/2018/06/donald-trump-justice-anthony-kennedy-retirement

[MerryHolidays]

26. I too have issues with how President Obama handled this

However, his choice of Merrick Garland was about the only chance to get his justice appointed to SCOTUS in 2016. Even Orrin Hatch praised Garland: https://newrepublic.com/article/131676/orrin-hatch-said-no-question-merrick-garland-confirmed-supreme-court

It's possible that enough Rs would have voted to confirm Garland (I guess), so that added to McConnell's need to obstruct the Senate's giving its advice and consent on the appointment.

A more "progressive" appointment would have lost on a Senate vote, IMHO.

[BeyondGeography]

36. There was never going to be a vote

He failed to anticipate that. Shit happens. But basically picking up your marbles and going home was nothing short of pathetic. We were left with a rump nominee who excited no one.

Let’s say he had nominated a progressive and actively stood behind him/her in the campaign, reminding voters all along what was at stake. Would that have put a few more votes in HRC’s column?

[MerryHolidays]

37. Given we were under an electronic invasion by Russia, I don't think it would have

While we didn't know it at the time, HRC was under constant attack by Russia via social media, directly or indirectly via the Trump campaign. Everything she did was met by a targeted smear/destruction campaign that eventually worked.

While it was a longshot, BHO had one other possible option: a recess appointment of Garland on January 3, 2017 for that moment in time between the old Congress and the new Congress. That would have lasted about a year. He chose not to do it. See my post 23.

I love President Obama, and all of this is hindsight. What CANNOT be missed now and forever is the Ds have to fight scorched-earth, with no mercy. There can be no more thinking you can work with these people. You can't. They take any attempts at diplomacy as an opportunity to kill you.

[Solomon]

27. Go ahead and tell us all the other shit Obama didn't do right.

Pretty convenient scapegoat you're got going there.

[BeyondGeography]

34. Oh, like the first thing I'm going to do is codify Roe?

You can research my posts and see how hard I fought for Obama in 07-08 and well into his presidency. If you think Roe, RBG and the Garland nom was managed as well as possible, fire away. I’m pointing out what could have been done better. Criticism is not scapegoating and fealty is not support.

[Solomon]

40. Yep. The first black president could have done everything a white president could do.

Right.

[Amishman]

17. We did. There was nothing further that could have been done

We had no cards left to play. There was no legal or constitutional mechanism to force them to take action. Plus if there had been, they simply could have voted him down. Then voted the next one down, and then again, until the election.

Shaming, speeches, and protests are of little impact. The Pubs stand proudly in opposition to us and wear our scorn as a badge of honor. Worse, if we get overly belligerent (even when we're right!), It can alienate voters who are not firmly in either camp.

[tritsofme]

18. This is absolute nonsense. There is nothing President Obama could have done differently that

would have changed the outcome. Mitch McConnell owns it 100%.

The “plan” you had for Obama is pure gobbledygook.

Dozens of presidential nominees are sent back to the White House at the end of each session of Congress, they are considered defeated by the Senate’s inaction. Why should Garland have been different from every other of the hundreds if not thousands of nominees in history who did not magically assume office?

Aside, the whole fixation on no vote is rather silly, if a president could do what you say (he can’t, again BTW) then why do you think McConnell and 55 GOP senators would have had a problem voting no?

[MerryHolidays]

28. Not sure agree. See post 23 (mine) nt

[tritsofme]

47. You keep jumping between so many fringe legal fantasies here, it's hard to keep up.

The bottom line is that all fault lies with Mitch McConnell.

The implication that President Obama could have changed the outcome “if he really wanted to” is a bullshit smear job that has zero credibility.

[MerryHolidays]

48. Thanks for your analysis (or lack of it) and ad hominem attack

It gets one nowhere.

There is a legal issue (fantastical or not) and you don't discuss that. Quite telling.

Yes, it's totally the Rs fault. But the net point is you fight fire with fire and you use EVERYTHING within your arsenal. By the way, Eisenhower's appointment of Earl Warren as SCOTUS Chief Justice was a recess appointment. So much for your legal analysis that this is "fantasy".

My point is hindsight. I am specifically referring to what the Ds need to do today and forever: fight fire with total armageddon. Otherwise, we lose.

[tritsofme]

50. I hadn't realized you shifted from "just pretend they're confirmed" to some recess appointment

maneuver, fair enough.

I’m not sure what this “recess appointment” would have accomplished, Garland gets to serve maybe a month, while nothing important is happening at the Court, and then Trump still gets to choose his nominee, who would replace Garland upon confirmation.

Then Garland’s seat on the DC Circuit would be vacant, and Trump would have got to fill it, while Garland just goes home, having accomplished nothing but flipping a critical appellate seat to Republicans.

So beyond anything else, it’s just a bad idea, something I’m sure President Obama’s team saw very clearly.

[MerryHolidays]

55. I haven't "shifted" one bit. A recess appointment is consistently what I mentioned in my posts here

I don't disagree this would have been risky, but the DC Circuit of Appeals seat likely would have been lost anyway since Trump "won" and there might not have been time for President Obama to get Garland's successor vetted, appointed, and confirmed before he left office.

It certainly would have gone to the courts where the specific issues could be litigated on the exact scope of what "advice and consent" means. Is it a right that can be waived? Is it an obligation on the Senate? Probably not, but there was a split second on January 3, 2017 where this was a theoretical possibility. And yes, I agree that it would have lasted from one month to one year for Garland.

I suppose my issue is that "we take the high road, and they take the low road" is extremely noble. However, it doesn't work with the Republicans and it doesn't work for us. Our Ds need to take the lowest road possible within the bounds of law and ethics and chop the legs off the Rs at EVERY turn. Joe Manchin's nonsense about "bi-partisanship" is a fantasy.

This is 100% on the Rs. Again, I don't blame BHO for not doing this. I don't think anyone could have predicted the hell that Trump has unleashed (I certainly didn't), and no one could have predicted the sequence of events from the announcement of the Garland appointment in March 2016 to January 6, 2021 and all the things (SCOTUS appointments, Russian influence, January 6 etc). But now we know that the Rs will do ANYTHING to win. I draw the line at legality and ethics as the baseline, but EVERYTHING above that should be fair game.

[tritsofme]

56. Garland's seat on the DC Circuit only would have been lost if he participated in a gimmicky

recess appointment. He would have had to resign to accept the recess appointment, and of course President Obama wouldn’t have been positioned to nominate his successor, McConnell had already been preventing votes on appellate judges for two years at that point.

As soon as the new Senate confirmed a permanent successor, Garland would be gone, and his vacancy accrued to Trump.

He might not even hear any cases in that time, for a few weeks of gimmickry, we lose a hugely consequential circuit seat, and get absolutely nothing.

This isn’t about “taking the high road,” it’s just a really bad idea.

[maxsolomon]

20. You forget that our Constitution is dumb as fuck.

It was written with the assumption that MEN (specifically) in the Senate would act in good faith. They could never have imagined today's Republicans. They are without honor and ethics.

The dumb Constitution says "shall provide advice and consent", and provides no mechanism to proceed if Senators refuse.

[brooklynite]

25. "Obama had just gone ahead and told Garland to take his seat. "

I'll assume this is just an angry rant and you're not proposing someone completely unconstitutional.

[MerryHolidays]

29. A recess appointment on January 3, 2017 was possible.

[brooklynite]

31. No, it was not.

In recent years they keep holding pro-forma sessions to get around that strategy.

[MerryHolidays]

33. You can't hold a pro forma session between TWO different Congresses, can you?

It was just for a moment in time on January 3, 2017, but it was there. I appreciate the reasons President Obama didn't do it.

In hindsight (and I fully appreciate the import of that word), it was the scorched-earth tactic that should have been done given the agony and hell of the last five years and its continuing effects.

I have no doubt the Rs would have done this if the scenario had been completely reversed.

See post 23 (mine).

[brooklynite]

41. The Senate doesn't have a different Congress.

Only 1/3 of the members are replaced each election, so it always exists and is in session.

[Sugarcoated]

30. I was livid, mostly at Moscow Bitch

But eventually as it dragged out it became the most angry and disappointed i ever was at Obama in his presidency. Dems, too. They didn't fight.

[JI7]

32. What would that do ? People need to vote for Democrats

[betsuni]

38. No, because Americans blame both sides for dysfunction in politics.

They would've thought Obama was being partisan and divisive.

[Patton French]

39. We did

But we were powerless to stop it.

[Mr. Sparkle]

42. A Democratic president would never do that, we're the "lets all try and get along party"

when what we need right now, is to take some serious bold actions.

[we can do it]

49. This post should be removed.

[Novara]

51. We did raise holy hell. Where were you?

[Demsrule86]

52. We did and we were informed not to threaten them with the courts...for Christ sake.

Hillary gave a big speech on it...and it was covered in the debates...they willfully refused to consider the courts and now many of them are yet again attacking Democrats...when really those who didn't vote for Hillary in the General are at fault here period.