Law Professor David Cohen joins Ring of Fire’s Sam Seder to talk about how the GOP stole a Supreme Court seat with unprecedented obstruction.

Transcription of the above video:

Sam:
Professor, I read a piece this week that suggested, and it struck me as being quite on point … That in doing this unprecedented, and I want to talk to you about whether or not this is unprecedented. By not seating, and not even confirming, not even having a hearing, not even meeting with in any meaningful way President Obama’s Supreme Court Nominee, that the Republicans were able to use this in the election and to great effect, as far as a lot of Conservatives who might otherwise have been reluctant to rally around Donald Trump, saw this fifth vote on the Supreme Court, this swing vote, as being that much more crucial. That struck me as a great point and probably, when we’re talking about 75,000 votes in three states, could have made the difference in this election.

Put into context for us, is there any precedent for what the Republicans did? How is it that there was no contemplation of a political party doing something like this?

David:
There is no precedent for what they did. They stole a Supreme Court seat. Supreme Court vacancies don’t arise on a regular basis. When they do, it’s the prerogative of the President to fill the Supreme Court vacancy with someone who supports the president’s ideology, or at least the president likes their ideology. The Republicans obstructed in an unprecedented way in order to steal this seat, and they took a gamble because what the President hoped for was that by obstructing like this the Republicans would suffer the consequences at the ballot box. The Republicans hoped that if they obstructed like this they could get the next presidency, keep the Senate and get the seat for themselves. They won the gamble. It turned out their way. They were successful in mobilizing their base to vote for the Supreme Court and the Democrats were unsuccessful in mobilizing their base to vote for President Obama’s nominee and against the Senate obstructionism. The Republicans won this, I wouldn’t say, ‘Fair and square,’ because it’s so unprecedented and it goes against what our Constitution expects, but they won this and they stole a Supreme Court seat away from the Democrats.

Sam:
This is, like you say, “Unprecedented.” What is the recourse in that situation? Is there no recourse? This seems to me to be a question of separation of powers in some fashion. Theoretically, if there was a chance for it to be resolved it would have gone to the Supreme Court, which of course was divided 4-4. Were there any options here? Aside from perhaps President Obama choosing someone who would have more resonance in the election and aside from the Clinton campaign making more of an issue of it, was there any type of recourse? What do we do in these situations?

David:
I think you hit on the one that I look back on and think was a missed opportunity, which is that the President could have nominated someone who would have galvanized his base. By all accounts Merrick Garland is a highly-intelligent, well-respected, nice guy, but there was nothing about him that galvanized anyone; so he was quickly forgotten and he never became a campaign issue.

If President Obama had nominated someone who could have helped diversify the court or would have been young and exciting to be on the court for another 30, 40 years, in some way Democrats could have latched on to this person. I think that the outcome might have changed and more Democrats would have been energized. This is a complete missed opportunity on the President’s behalf. Then again, he didn’t expect the Republicans to obstruct in this historically, unprecedented way.

In terms of recourse, there is no lawsuit that would ever be heard in any federal court, let alone the Supreme Court, over this. The Supreme Court and the federal courts don’t hear things that they call, “Political questions.” Those are things that they think are better suited for the political branches and the political process. That’s what the court would have said this is.

The President could do two different things. I don’t think either one would be successful, but some people have written about this in various places. The President has the power to appoint someone to fill a vacancy when the Senate is not in session and that appointment lasts until the next Senate session is over. Technically, there is a gap in the Senate sessions when they turnover on January 3rd. The President could appoint Merrick Garland on January 3rd, right before the new Senate takes office, and he would hold office for two years. Some people have suggested he do that, it’s called a recess appointment.

The trouble with that is that the Republicans in Congress could pass a law saying this current Senate session is now over.

Sam:
Right.

David:
President Trump would sign that and Merrick Garland’s time on the Supreme Court would end; so I think that they could get around that.

Other people have suggested that the President just say, ‘Well, you’ve waited this long. You have given me your consent by doing nothing. I’m going to put Merrick Garland on the Supreme Court.’ I think that also is a non-starter because if he signaled he was going to do that, I think the Senate would just vote against Merrick Garland, saying, ‘Okay, well, now we will take the vote and we will vote against him.’

I really don’t think there is any recourse. What should have happened is that this should have been an issue that the American people said, ‘The Republicans are obstructing good government,’ and voted against this. I wish that Hillary Clinton had made it more of an issue during the campaign. Unfortunately, she didn’t. I wish Obama had nominated someone who resonated more with Democrats; but he didn’t and here we are.

Sam:
I don’t want to spend too much time on this but in the first scenario, where we are talking about the recess appointment, the ability for a president to recess appoint we know is limited by the National Labor Relations Board versus Canning holding. This is from a couple of years ago.

David:
Right.

Sam:
It’s not exactly on point. Some people argue that the questions about what constitutes a genuine recess, that the court wrote about was dicta; so that theoretically, there could be a lawyer in the DOJ that says, ‘Well, Mr. President, the Office of Legal Counsel have reviewed this, you actually do have the authority on January 3rd to appoint somebody.’ From a political standpoint, this is the weird part, there is no legal recourse. There is no process here, it’s all political.

Maybe this is not necessarily your portfolio, but theoretically the President could say, ‘I’m withdrawing Merrick Garland and I’m appointing Oprah.’

David:
Right.

Sam:
All norms are out the window now, so Oprah gets seated on the Supreme Court and then the Republicans have to vote her out. Maybe it takes a day or two, who knows?

There does seem to be a complete lack, on the left, of an appreciation, still, of how important the Supreme Court is. Which is stunning. I’m afraid we on the left are about to learn that lesson and it’s going to be a 30-year-old lesson.

David:
Yeah. It’s really stunning to me too. I tried to write about this and call attention to this before the election in various outlets. I think I saw a statistic after the election that it was over 20% of Republicans said they voted the way they did because of the Supreme Court and it was less than 15% of Democrats who felt that way.

The numbers should have been the same, if not more, for Democrats because we had an opportunity for something that we haven’t had in my lifetime, and I’m 44, which is a progressive Supreme Court. If we had gotten a fifth seat, we would have had a five justice progressive, or at least liberal, majority on the Supreme Court. We haven’t seen that since the ’60s. It could have reversed all sorts of conservative precedent around criminal justice, the environment, the death penalty, affirmative action, women’s rights, abortion, that we’ve been living with for the past 20, 30 years under what a lot of people think is the most conservative court that has ever been. This is a hugely missed opportunity on the left. I agree with you, we could be lamenting this for three decades.