Tuesday, March 22, 2016

John Yoo Can Defend Anything

Here is John Yoo writing in National Review to defend Senate Republicans' refusal to vote on Merrick Garland's nomination to the Supreme Court:
The Constitution does not require the Senate to confirm anyone; it only requires the Senate’s advice and consent before the president can appoint a justice to office. The Republicans can await the outcome of the elections.
The relevant text of Article II is indeed minimal: The President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." There's nothing in the text that explicitly requires holding hearings or a vote; all of that stuff is just tradition.

Going on a hundred and fifty years' worth.

The problem with Yoo's argument is that it proves more than he wants it to. He not only demonstrates that the Senate needn't act until the outcome of the next election, he inadvertently proves that the Senate need never act at all. Here is his textual argument paired with different time frames; take your pick:
The Constitution does not require the Senate to confirm anyone; it only requires the Senate’s advice and consent before the president can appoint a justice to office. The Republicans can wait until the next President makes his or her nomination.
The Constitution does not require the Senate to confirm anyone; it only requires the Senate’s advice and consent before the president can appoint a justice to office. This being the midpoint of President Clinton's first term, the Republicans can await the outcome of the next election.
The Constitution does not require the Senate to confirm anyone; it only requires the Senate’s advice and consent before the president can appoint a justice to office. The Republicans can wait as many years as they want to, until they get a President they trust.
What will government be like when the chicken now being hatched comes home to roost, and a sitting president can reliably fill a Supreme Court vacancy only during the first hundred days of the first term? Imagine that future, where it's typical for three or four Justices to retire en masse just as soon as a new President is sworn in, kicking off a battle royal for the new bench. The Supreme Court would become a sort of mini-legislature, or an extension of the Cabinet.

What the Senate Republicans are doing is dangerously radical. Their best argument from precedent isn't precedent at all—it's just a speech that Joe Biden made at a time when there wasn't even a nomination on the table to consider. Since 1875, every nominee who was not withdrawn has received a hearing or a vote.

'Let the people decide,' say the Republicans. Er, except that if the people should happen to decide that Hillary Clinton will be our next president, then hang on—forget what we said about the people deciding things.

If the people really could decide this question directly, then I suspect that we would choose Merrick Garland today as our next Supreme Court justice. In a Gallup poll published March 21st, 52% of respondents wanted Garland confirmed, and only 29% didn't want him confirmed. The proportion that wants the Senate to at least vote on the nomination will be even higher than 52%.

By the way, I don't have strong views about Merrick Garland specifically. All I know is that he has applied for the job, and he seems qualified. When somebody applies for a job and meets the qualifications, you give them an interview.

Americans believe in giving people a fair shake. Senate Republicans can vote no if they want to, but they should hold a vote.

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