Senate gaveling keeps seat on high court open
Twice a week since mid-July, the Senate has been going through the motions of gaveling into session, reading a brief announcement setting the date for the next meeting and then shutting down the floor.
It takes only a single lawmaker a mere 30 seconds, yet each of those brief meetings does just a little bit more to dash President Obama’s hopes of seating Judge Merrick Garland on the Supreme Court.
“This will ensure there’s no recess appointment of the president’s nominee,” said Don Stewart, a spokesman for Senate Majority Leader Mitch McConnell, Kentucky Republican. “The Supreme Court has our back on that one.”
Mr. Obama nominated Judge Garland on March 16 to fill the seat left vacant in February by the death of Justice Antonin Scalia. But more than five months later, the Senate has not acted on the nomination. Republicans who control Congress insist that voters should have a say in the pick, based on whom they elect in November.
Most Supreme Court vacancies are filled in a matter of weeks, and just two vacancies since 1900 have lasted as long as the Scalia seat, which will have been empty for more than 200 days by the time Congress returns from a sevenweek recess on Sept. 6.
In the past, the president could have used that time to flex his recess appointment powers, granted in Article I of the Constitution, which allow him to fill posts when Congress is out of session.
But the pro forma sessions are enough to stop him.
It’s a tactic Democrats know well, having made extensive use of it when they controlled the Senate in 2007 and 2008, denying President George W. Bush his chance to make recess appointments.
Sen. Harry Reid, the Nevada Democrat who crafted the strategy against the Republican president, is now on the other end, hoping to at least find a way to force a floor vote on Judge Garland.
“There are some extreme procedures we can use,” Mr. Reid told reporters this month.
He said he hopes Republicans who are eager to distance themselves from their party’s presidential nominee, Donald Trump, will jump at the chance to confirm Judge Garland.
“If they want to separate themselves from Donald Trump, and heaven knows they should, what they should do is call in McConnell to confirm Garland,” Mr. Reid said.
Short of that, the best Mr. Reid can hope for is that voters punish Senate Republicans at the ballot box in November. But he and his fellow Democrats squandered their best chance to make it a major political issue. Not one of the major speakers at the Democratic National Convention last month mentioned Judge Garland.
Mark Strand, president of the Congressional Institute, which studies Congress and its powers, said as long as at least one chamber is held by the opposition party, it’s unlikely there will be another recess appointment.
Mr. Obama tried to test that strategy in 2012 by announcing a series of recess appointments to the National Labor Relations Board, even when the Senate was meeting every three days. A company sued, and the case made its way to the Supreme Court, which in a 9-0 spanking ruled Mr. Obama out of order.
“By forcing the issue, he ended up undermining the executive’s ability to make traditional recess appointments,” Mr. Strand said.
The pro forma sessions are strikingly lackadaisical, particularly for a chamber that is usually strict and scripted.
One August morning, just a few moments before the session was to begin, several large bookcases were strewn across the back of the chamber, where they had been laid while one of the cloakrooms was getting a makeover. A group of workers rushed into the chamber and carried the bookcases out just in time for the session to begin.
The sessions are almost always hosted by junior Republicans, and not all of them make it on time. Sen. Tim Scott, South Carolina Republican, rolled into the chamber three minutes after the scheduled starting time for his session earlier this month. Last week, Sen. Rand Paul was 18 minutes late.
In the meantime, Judge Garland’s nomination remains in limbo. He has gone through all of the procedural hoops he can on his own, including meeting one-on-one with senators and filling out the standard nominee questionnaire probing his schooling, his career, his volunteer commitments and his extensive legal record.