Outside Counsel

I don't know if there is actually an answer to the question of what would become of Merrick Garland's Supreme Court nomination in the event the Senate fails to take it up before this coming January 20. It's never happened before, of course. One might argue that since the Senate is a continuing body the nomination would likewise remain pending until withdrawn or acted upon. On the other hand, although the Executive function is certainly continuing, that function is personal to the individual holding the office, and the nominating power might be argued as being personal as well. It is a quirk, and quirks can be difficult to account for in 7,591 words (including Amendments). One of the things I tell my students is that in drafting the Constitution-- or, really, in drafting any sort of law-- there is an implicit assumption of good faith on the part of those charged with enforcement. Congress is presumed to act in accordance with its duties and responsibilities, judges are presumed to enforce the laws, and so on. Fallibility is why we have different roles assigned to different governmental branches, but actual malfeasance-- well, that's pretty unusual. Actual, open bad faith, which is what we are dealing with in Judge Garland's situation, may be Constitutionally unique. I can't come up with another example, although I suppose there may be one. In any event, I expect that the point is moot. In the event that the lame duck Senate fails to act, I would think that the most likely prospect is that Judge Garland will withdraw as nominee, and allow the incoming President to make her own selection. Doing so would be a show of good faith by the judge, who almost certainly would like to avoid precipitating a Constitutional dilemma. What that would mean, of course, is that one of the very first things an incoming President would have to do is make a new nomination, and won't that be interesting? Were I Hillary Clinton I'd be inclined to simply re-nominate Judge Garland, but there are other intriguing possibilities. I kind of like the idea of Mr. Justice Obama, for example. Either one, actually. UPDATE: Get used to an eight person Supreme Court.