Re: Merrick Garland, it's a bit late for the Obama administration and its supporters to appeal to constitutional norms requiring Senate consideration

|The Volokh Conspiracy |

As co-blogger Jonathan H. Adler has pointed out, the Senate's power to advise and consent on judicial nominees does not give the Senate any obligation to exercise that power in any given way. The constitutional text, therefore, does not require the Senate to either hold hearings on Merrick Garland, nor to have a vote on his nomination.

On the other hand, our constitutional system is not based solely on the constitutional text, but on norms of behavior that have developed over time. And while mandatory hearings and eventual votes on Supreme Court nominees weren't always part of our constitutional culture, they have become so in recent decades. So Democrats would seem to have a strong argument when they suggest, based on constitutional norms (but not based on constitutional text), that the Senate has an obligation to formally consider Garland's nomination, rather than refuse to consider it because it's an election year and would shift the balance on the court.

The problem with that narrative, however, is twofold. First, as Adler has repeatedly documented, norms surrounding presidential appointments, especially judicial appointments, have increasingly been stressed and undermined in recent years by both parties. It's not clear, if I were a Republican senator, why I'd use this particular opportunity to call for a cease-fire, especially one that the other side may not honor in the future.

Second, as I describe in "Lawless," the Obama administration, with its aggressive assertions of executive power (some of which, I should note, I would support on policy grounds), is in a poor position to appeal to constitutional norms. The administration showed a severe lack of respect for constitutional norms when, for example, contrary to decades of precedent that the Justice Department will defend any federal law with a plausible defense, it refused to defend the Defense of Marriage Act before the Supreme Court (after defending it a year earlier in the court of appeals!); when the administration forced Common Core standards on local education without anything resembling explicit congressional approval or even debate, based on an aggressive reading of vague existing law; when the administration unilaterally changed immigration policy via executive order, after Congress failed to pass legislation that would have accomplished similar ends; when the president has simply refused to enforce provisions of Obamacare that proved politically problematic; and, for that matter, when the president advocated for and signed perhaps the only major piece of American social legislation (Obamacare) that not only failed to win widespread bipartisan support, but also attracted not a single vote in either house of Congress from the other party. More generally, President Obama has repeatedly promised to try to circumvent Congress using any arguably legal means available, on the rather extra-constitutional grounds, contrary to the norms attendant to the separation of powers, that "we can't wait" for Congress to pass legislation that the president favors.

No one forced the president to ignore preexisting constitutional norms to advance his political agenda. And it's just a little too cute for his administration, heedless of constitutional norms in a variety of contexts, to appeal to them with regard to the Garland nomination.

UPDATE: In case clarification is warranted, violating a constitutional norm is not the same as violating the Constitution. Constitutional norms are not required by the Constitution, but are simply the accepted ways of doing business, dictating how our system operates in the absence of explicit constitutional guidance. The classic example of a constitutional norm is the two-term limit on the presidency, adhered to by every president from George Washington until FDR. FDR violated the norm, and in doing so did not act unconstitutionally; a norm is only a norm until it falls into desuetude. By contrast, now that we have a constitutional amendment turning the old norm into an actual constitutional rule, it would be unconstitutional for a president to have a third term.

I should add that I really don't know anything about Judge Garland other than what's in the papers today, and it strikes me that with Trump still the frontrunner for the GOP nomination, he might very well be a better bet for the Republicans than hoping for a Republican appointment in 2017. I also think it was unwise both strategically and as a matter of my own understanding of constitutional norms for the Republicans to refuse to hold hearings before even knowing the identity of the nominee. But all that said, I still don't think that this particular administration is in much of a position to persuade the Senate by invoking the importance of adherence to constitutional norms.