There’s a saying, attributed to Woody Allen, that “showing up is 80 percent of life.” Slate’s Dahlia Lithwick suggested in a Tuesday piece that showing up might be even more important for Merrick Garland if he wants to become a Supreme Court justice. Lithwick semi-seriously wrote that if “by the end of September of 2016” Senate Republicans still haven’t given Garland a hearing, he “should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, [and] seating himself at the bench.”
By doing so, Lithwick claimed, Garland “would be achieving two vital goals: First, he would be doing his job and highlighting that this is precisely what Senate tantrum throwers are refusing to do. But second, he would be…bravely standing up for [the constitutional] principle [of] effective government…That principle is not something as ignoble as ‘we’ll blow up the court before we let it shift to the other side,’ which looks more like hostage-taking than taking a stand…Advise and consent doesn’t mean that the NRA or the Koch brothers get a veto.”
From Lithwick’s article (bolding added):
For decades now, Republicans have organized their electoral politics around the composition of the high court…Democratic candidates rarely talk about the court directly…
…The [Democratic] party also suffers from what I will call the current Insanity Gap. This second gap involves one party’s willingness to throw away any sense of pride, integrity, or even long-term strategic thinking in favor of acting like toddlers having a tantrum next to a Snickers bar in the checkout line…
…Perhaps…the only real alternative to GOP derangement on the question of holding hearings for Garland is to unspool a little corresponding derangement on the left…
[Let’s say that] Senate Republicans refuse to give [Garland] a hearing. After a suitable period of time—let’s say by the end of September of 2016—Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, [and] seating himself at the bench…
…In the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there. (If you’re the law review type, here is a very plausible argument that this is actually the case)…
…Judge Garland would be achieving two vital goals: First, he would be doing his job and highlighting that this is precisely what Senate tantrum throwers are refusing to do. But second, he would be…bravely standing up for a principle: that the constitution, as Robert Jackson famously suggested, contemplates an effective government. And unlike what’s being modeled by most Republican senators, that principle is not something as ignoble as “we’ll blow up the court before we let it shift to the other side,” which looks more like hostage-taking than taking a stand…Advise and consent doesn’t mean that the NRA or the Koch brothers get a veto.
