What Would Nino Do?

Charlie Geyh (Indiana-Bloomington) and I have an oped today in The National Law Journal about the Merrick Garland nomination.  There is an un-paywalled version here.

Here is the gist of the piece:

But if the Senate Republicans won’t listen to Democrats — or even to the majority of Americans who want Garland to get a hearing — perhaps they will pay attention to the words of several Supreme Court justices, past and present, who have warned about the problems created by an eight-member court.

We then provide the past comments of Justices Roberts, Rehnquist, and Scalia on the undesirability of proceeding at less than full strength, even in a single case.  

Comments

[Captain Hruska Carswell, Continuance King]

Whether its the Federalist Papers, proceedings at the Constitutional Convention in Philadelphia or any of the thousands of learned writings of our judges these past 240 years is totally irrelevant to the constituency that is being given a current voice in the Senate. Unfortunately, civic ignorance is rearing its ugly head. It is demonstrated by government shutdowns, "fiscal cliffs" and sequester. There are folks that would rather defund and tear down the government then turn around and argue its ineffectiveness. The Ronald Reagans, Sarah Palins, Ted Cruzs and Donald Trunps are the currency of the realm, except when it comes to the Second Amendment.

[Captain Hruska Carswell, Continuance King]

If another Heller was on Cert, we would have a new confirmed nominee.

[Orin Kerr]

Steve, if I'm not mistaken, a difficulty with your argument is that each of these authorities talks about the problems of having less than full strength without offering advice on how that should be weighed against other considerations. I don't think anyone disagrees that, in a perfect world, the Court should be at full strength; the question is how much that should factor into the inherently political questions of what the Senate should do with a particular nomination.

[Steve Lubet]

I am sure, Orin, that every member of the Court would say that the Senate can do whatever it wants with regard to a nomination. When removed from politics, however, justices have repeatedly opined that the court's function is hampered when it is short-handed in even a single case. The refusal even to consider Judge Garland multiplies that problem by as much as eighty.

If the Republican Senate chooses to impose that problem on the Court, in the hope of maintaining political control, there is nothing that the justices or anyone else (save the electorate, eventually) can do about it.

So yes, the question is how much importance to place on the availability of a full court. It appears that Justices Roberts, Rehnquist, and Scalia would say "pretty important."

[anon]

As usual, Lubet just wants to make political hay. ONe supposes he wasn't agonizing about undecided cases during the Bork, Ginsburg debacle, nor when so many prominent Democrats declared, during previous Republican admins, that seats should go unfilled.

But, here, the sleight of hand is just too disingenuous even for Lubet. The instances he cites all concerned RECUSAL. The recusal issue is completely different: an internal matter of court procedure. Justices opined that in the weighing of priorities, full court decisions would be preferable, in many instances, to split decisions as a result of the decision of a Supreme Court Justice to recuse himself/herself (presumably, the reason, for example, for some very obviously ignored conflicts in recent years: and I'm not referring to the infamous duck hunting trip that some, of like minds as Lubet, repeat ad nauseam as if incarnating evil).

Justices might be of a different mind when commenting on the power of the Senate: a Constitutional power that Lubet apparently believes requires an "up or down vote" (news: it doesn't). Lubet can attempt to mislead the masses by citing comments on recusal, he can ignore the Constitutional authority of the Senate in the process, and he can (probably)legitimately post on the FL in a way that amounts to campaign speech, but readers of the FL should see thru the usually partisan nature of his views.

[Captain Hruska Carswell, Continuance King]

anon at 4:58,

It's not Professor Lubet who politicized the process. You are just killing the messenger here. You are acting like my clients who blame me when a Judge makes a guilty finding after viewing video surveillance of them sticking a bottle of perfume down their shirt at the local Kohl's. Or its my fault they blew a .19 after plowing into three cars at the White Castle drive thru at 2:00 am.....