A scheme that might work … unless you understand the Constitution, the law, tradition, etc.

Sean Davis of the Federalist website explains why a liberal scheme to install Merrick Garland on the U.S. Supreme Court wouldn’t work.

Having watched continued control of the White House slip away, progressive activists are now furiously searching for ways to rescue Merrick Garland’s nomination to the U.S. Supreme Court before President-elect Donald Trump takes office. Unfortunately for these activists, their latest scheme to install Garland, who was nominated to the Supreme Court by President Obama last March, has absolutely no basis in reality.

The primary torchbearer for this plan is Daily Kos editor David Waldman, who claims that Senate rules allow Democrats to confirm Garland after the current congressional term expires, but before new senators take office. …

… If you are completely ignorant of how the Senate works, it probably sounds great. If you are remotely familiar with Senate rules, precedents, customs, and procedures, however, it will likely strike you as nonsense. To be clear, this scheme has no basis in reality. To be believed, it requires one to completely ignore the Constitution, the Standing Rules of the Senate, Senate precedent, and basic common sense.

Waldman, to my knowledge, has no actual Senate experience, let alone the kind of experience that would over time have given him some measure of expertise on parliamentary matters. His analysis makes clear his lack of familiarity with the most basic of Senate rules and precedents. …

… By custom, Congress convenes on January 3 of even years to begin a new congressional term. By law, however, the term of duly elected senators within a particular class begins precisely at noon on January 3. The terms for new senators begin at the precise moment the terms for the previous senators expires. The 2016 class of the U.S. Senate consists of 34 senators. They become senators not at the whims of Joe Biden or Dick Durbin, but by the combined authority of the U.S. Constitution and the voters who elected them to office. This fact alone nukes the entirety of Waldman’s point, because the alleged gap of time during which he proposes his parliamentary chicanery simply does not exist. At this point, no other arguments need to be made against Waldman’s plan; the plain text of the Constitution utterly destroys it.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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