Does Obama Have Any Supreme Court Options Left?

One of the many buyer’s-remorse petitions that sprung up in the immediate aftermath of Donald Trump’s election last week is one calling on President Obama to appoint Merrick Garland to the the Supreme Court seat vacated in February after Antonin Scalia’s death.

Garland has waited 246 days for a Senate hearing regarding his nomination. That’s the longest any Supreme Court nominee has ever waited for a hearing; the next longest wait was half that long (Louis Brandeis, 125 days in 1916).

What petitioners want to know is: since Senate Republicans’ stonewalling of Garland’s nomination is so unprecedented, why shouldn’t Obama do something unprecedented himself and fill the seat without them?

Citing a Washington Post op-ed from this spring, the petition says Republican senators have effectively waived their constitutional rights to advise and consent to, or reject, the president’s selection.

Rolling Stone asked Nan Aron, president of Alliance for Justice and a longtime crusader against conservative justices (she waged high-profile battles against Roberts’ and Alito’s confirmations) if Obama has any options left with regard to the high court. Her answer, in short: No – but that doesn’t mean progressives should let it go.

Regarding the recent petition, Aron says she “can’t envision a procedural maneuver that would allow the president to place Garland on the Court.” Because there is no precedent, it’s hard to envision how it would work, technically – would Garland just show up to chambers one day and take Scalia’s seat? But more important, Aron says, is the fact that the idea has “got, as far as I know, very little support among individuals from either side of the political aisle.”

There has been slightly more talk around the possibility of Obama making a recess appointment – to install Garland in the seat, temporarily, between sessions of Congress. “The difficulty with a recess appointment is that he would only have that position on the Supreme Court for a very limited amount of time,” Aron says. “He’d be on the Court for a year and it doesn’t serve the public, the Court or justice to put anyone on the bench on the Supreme Court [for such a short amount of time.]”

Obama would have the chance to make the appointment in early January, between the end of the 2016 Senate session and the start of the 2017 one. It’s not likely that he’ll choose to, though; for one thing, he hasn’t shown a lot of enthusiasm for recess appointments, compared to his predecessors. (He’s made 32, compared to George W. Bush’s 171 and Bill Clinton’s 139.)

Straining to find the silver lining in the collective frustration about Garland, Aron says simply, “I hope that people hang on to that anger, to fight the next Supreme Court nominee if he or she is not in-step with our cherished rights and liberties. It’s a sign that people are watching. It’s a sign that people are angry, and hopefully a sign that when a nomination is made, that they will rise up and come together to oppose it.”