A late attempt to save Judge Garland’s nomination?

Arguing that the Senate’s Republican leaders have “stolen” a Supreme Court nomination, to deliver it to the new Trump administration, Oregon Democratic Senator Jeff Merkley is signaling a late campaign by his colleagues to get a vote on President Obama’s choice of Judge Merrick B. Garland for the court’s vacant seat.

In two appearances on cable TV Thursday night and Friday morning, the Oregon lawmaker said that he and those on his side of the Senate aisle “will do everything we possibly can to block” what he called the “theft” of the opportunity to pick the replacement for the late Justice Antonin Scalia.

President Obama’s nomination of Judge Garland was made on March 16, and thus has been waiting for any sign of Senate action for nearly eight months. Senate GOP leaders have said the Scalia replacement must be made by the president elected on November 8.

The new administration, taking office in January, “has no right to fill” that seat, Markley said on MSNBC Thursday night. He repeated the charge of a stolen opportunity on Friday morning on CNN, suggesting that he and his colleagues will be attempting through publicity to inform the American people of what he called the “lack of legitimacy” if the vacancy is handed over to the administration of President-Elect Donald Trump.

Here is how he put it on CNN on Friday: “What the majority in the Senate has done is to basically steal that from one presidency and try to deliver it to another, which is going to greatly and profoundly affect the legitimacy of the Supreme Court…The theft is under way.”

He added that some of his Senate colleagues are “privately deeply ashamed.”

Although the senators spoke in terms of what Senate Democrats would do, it was not clear whether he was speaking for the leadership of the minority party in the chamber, or only for a more limited group of objecting members.

The senator was asked specifically during his MSNBC appearance whether Senate Democrats would try to block any nominee that was sent to the Senate by the new administration over the next four years, and he did not reply directly. What he did say, though, was that Democrats would be attempting to persuade the Senate majority leader, Kentucky Republican Mitch McConnell, to give Judge Garland “a legitimate shot at a vote” in the Senate during the post-election session of Congress, before a new Congress opens on January 3.

The Senate is currently in a recess, but it must hold a so-called “lame duck” session because the current funding to run the government expires on December 9. In the meantime, the Senate is holding sessions every few days, with no business actually being done. That is designed, at least in part, to prevent President Obama from making any “recess appointments” while the Senate is out of town.

Under the Constitution and Supreme Court precedent, a president may make a recess appointment – including one to the Supreme Court – but only if the Senate is in a recess that lasts at least ten days. If the Senate reassembles more frequently than that, but does no business other than formally opening and closing a session, that still interrupts the opportunity for a recess appointment to any federal post.

Once the Senate has recessed this year’s session for the final time, in late December, the Garland nomination – if not acted upon – would be returned to the White House.

But whether that would create an opportunity for President Obama to name Garland to a recess appointment before inauguration day on January 20 depends upon how late in December the Senate is formally sitting, determining how long a recess will be until the new Congress meets on January 3.

Republicans retained control of the Senate in Tuesday’s elections, so GOP leaders will be able to schedule only short recesses between that day and the inauguration.

That makes it appear that the only chance for a vote on Judge Garland would be in the “lame-duck” session, but GOP leaders have said repeatedly that they would not schedule such a vote. The effort by Senator Merkley and his colleagues thus appears to be an attempt to build public pressure on the GOP leadership.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and he has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.