Se­nate gavel­ing keeps seat on high court open

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

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.


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