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SCOTUS : alternate history

by Pam Green, © 10/25/2020

Here are a few ideas of how President Obama might have dealt with the refusal of the Senate Judiciary Committee to perform their Constitutionally mandated duty to "advise and consent" on such appointments. It's impossible to give advice on any appointment without making some kind of evaluation of the qualifications of the proposd appointee. In refusing to meet with and hold hearings on appointee Merrick Garland, these GOP Senators were clearly shirking their duty.

(And , by the way, 9 months is a long time. Ask any woman who has carried a pregnancy to term.)

he might have invoked the adage "silence gives consent"

There's the old adage and belief that "silence gives consent". Just about every date rapist has invoked this idea, saying "but she didn't say 'no' " or "she didn't say 'no' loud enough for me to think she really meant it" (often while holding his hand over her mouth or both hands on her throat)..

So after a month or so of the Judiciary Committee remaining "silent" and refusing to give "advice" as to the merits of Merrick Garland, Obama could have said that their silence means consent to the appointment. Then gone ahead and had Justice Garland sworn in.

This would surely have produced a great deal of controversy and produced a Constitutional crisis. That's not the usual style for "no drama Obama", but he could have done it and maybe it would have worked.

he might have made a different appointment, one that could not have been denied

He could have pursuaded Garland to withdraw, possibly after Hillary promised him quietly that he would become her very first appointment. Then he could have appointed the one candidate whose qualifications could not be denied and who had already recieved a prior Senate's confirmation by a vote of 99 to 0.

He could have appointed Sandra Day O'Connor, perhaps using the phrase "our Once and Future Justice"

The reasons for her earlier retirement (in 2006), that her loyal and loved husband needed her personal care, no longer applied because he had passed away since then (in 2009). She was still alive (a requirement) and at age 86 not insupperably old by SCOTUS standards. (John Paul Stevens served until he was 90, and so did Oliver Wendell Holmes , both of them highly revered. Ruth Bader Ginsberg intended to equal that record.). Her qualifications, as judged by her performance while Justice (1981 to 2006) would be undeniable, as she was famed for her skill in getting together 5 or more to yield a majority ruling. She was skilled at crafting a majority view that was sufficiently congruent with the views of the mainstream of the American public, thus creating a Court ruling that would be acceptable to that public.

Quite likely the Senate GOP members would have confirmed her with a huge sigh of relief. She was so much more conservative than anyone else Obama could have chosen and likewise more conservative than anyone the most likely "next President", Hillary, would be likely to choose.

Even without a new confirmation, since she'd already been confirmed 99 to 0 in 1981, Obama could well say that she doesn't need to be re-confirmed. Swear her in immediately. Again there might be some controversy, but the GOP would be taking a huge gamble if they protested.

There's just one little problem with this candidate. She had by that time possibly entered early stage Alzheimers, but that was not revealed until Oct 2018. Whether it was suspected by her in early 2016 is unknown, but it had not yet been diagnosed and it certainly was not known publically.

he might have encouraged Hillary to shout out

Hillary could and probably should have made a huge issue about this. She could have started with recounting all the times that SCOTUS appointments have been confirmed less than 9 months before the next election. She could have joked about how long a time 9 months is : "as I've so often told Chelsea"

She then could have promised the nation that if elected she would immediately appoint Merrick Garland to the vacant SCOTUS seat. And promised that if the Senate didn't confirm him without having found a serious reason not to do so, ie some serious flaw in his fitness for office , she'd send them someone much further to the left as her next choice. (Her next choice might well have been Barak Obama, well qualified on basis of his Professorship in Constitutional Law at University of Chicago.)

She could have made a big issue of the importance of the Supreme Court to her audiences at all rallies and TV speehes and on her web site. SCOTUS will continue to hear cases on the Affordable Care Act. SCOTUS will continue to hear cases on discrimination on the basis of race, religion, national origin, and sex. Women, do you really want to go back to being second class citizens ? Do you want that glass ceiling turned back into concrete ? Persons of color, do you want to go back to Jim Crow and voter supression laws ? Etc, etc, and so forth.

And then she should have pointed out that no President acts alone, that she can't do it without a Congress williing to help. Please give her a House and Senate that will help her to help the vast majority of American people.

A strong enough reminder to people that this election could decide whether they got to keep health insurance, whether women would keep the laws mandating equal pay, whether women would keep decision rights over their own health and life-course, and so on, might have swung the tide to her election.

(Oh, by the way, Hillary would have been better prepared than "who was that unmasked man" to cope with a pandemic because during her Secretary of State years she had attended and spoken at a conference on bio-terrorism potential for epidemic diseases. She stressed the need of preparedness. That same preparedness would apply equally to man-made disease and to emergent natural disease. Another attendee and speaker was Dr Anthony Fauci.)

purely hypothetical

Garland might have withdrawn (by his own choice)

Hypothetically, let's call the next appointee , whether made by Obama or Hillary or Trump, " Judge Norman Nowon" ("noone" spelled backwards is "nowon", with my thanks to Samual Butler), a Federal Circuit Court of Appeals Judge who wisely never wrote anything in law journals and always ducked writing the majority Circuit Court opinion and never wrote a dissent opinion.

How would the Judiciary Committee have ruled if it had been discovered that he had been credibly accused of having at an earlier time (a) committed sexual harrassment that was disgusting but not criminal or (b) had committed an act of criminal violence, namely Attempted Rape ?

Of course no President would knowingly appoint a person known to have had such accusations, but let's suppose that this information came out only during the confirmation hearings.

Would the outcome depend on whether the majority of the Judiciary Committee and the Senate as whole were of the same party as the appointing President ?

"Submitted for you consideration" as Rod Serling liked to say.

• Concerning the Legitimacy of the Supreme Court. how events of the past 20 years raise questions about the respect due the legitimacy of the Supreme Court as a non-political upholder and interpreter of the Consitution