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More Dershowitz: Obama should have had Garland sworn in and dared Republicans to remove him

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What? When did this guy go full YOLO on presidential power?

Harvard Law prof. Alan Dershowitz (@AlanDersh) discusses Pres. Trump’s #SCOTUS pick Brett Kavanaugh — and criticizes the GOP for refusing to consider Obama’s 2016 nominee Merrick Garland: “They stole the first nomination to the Supreme Court — absolute theft, unconstitutional.” pic.twitter.com/UQjGMlZqlo

— The View (@TheView) July 10, 2018

A Twitter pal wonders if he’s talking about a recess appointment, as that’s the one way Obama could have constitutionally appointed Garland without a Senate vote. But that can’t be what Dershowitz means. All Republicans needed to do to block that route was hold pro forma Senate sessions, per SCOTUS’s (9-0) opinion in NLRB v. Canning. There would have been no Senate recess that O could have used to put Garland on the Court.

I think Dersh means exactly what we think he means. He wanted Obama to ignore the Constitution and install a justice without Senate consent, presumably on the theory that McConnell violated the Constitution first by refusing to give the Senate an opportunity to give its advice and consent. He even refers to Republican tactics in the clip as “unconstitutional” without saying why. For good reason: There’s no credible argument that they were or else the Obama White House would have tried suing over it. Without any provision in Article II requiring the Senate to give its advice or consent within a certain time, there’s no case that McConnell or the Senate was acting unlawfully by delaying. Implicitly, in fact, there was a timetable on the Scalia vacancy. If Hillary had won in November, the GOP would have taken up her nominee in early 2017. And voters had a golden opportunity to register their disapproval of McConnell’s tactics in the fall of 2016, the preferred constitutional route for resolving “political questions.” How’d that work out?

In other words, Dershowitz was prepared to countenance an explosive constitutional crisis that would have further expanded executive power at the expense of the legislature with nothing in the text of the document to justify his position. If Obama had taken his advice and won the ensuing court battle, the Senate’s gatekeeping power over Supreme Court appointments would have shrunk. Instead of blocking a nominee with 51 votes, they’d need 67 votes to remove the newly installed justice after he’d already joined the Court, an impossible burden in a hyperpartisan age. And then we’d face a new question. How long would a Senate delay in confirming a nominee need to be before the “advise and consent” requirement in Article II magically melted away and the president could once again appoint whomever he wanted whether the Senate approved or not? Six months? Three?

The funny thing, though, is that Obama almost certainly would have lost one way or another if he’d tried this. If he followed through and appointed Garland without Senate approval, there’s reason to believe from the Court’s lopsided Canning majority that McConnell would have won and the appointment would have been declared invalid. No Senate advice and consent, no confirmation. If Obama had merely threatened to do it, Republicans would have been so outraged that McConnell could have probably called a vote and gotten the Senate to kill Garland’s nomination outright instead of letting it linger in limbo. Which makes me think this is just Dershowitz trying to claw back some liberal cred after pissing off so many lefties with his defenses of Trump this year. He’s still a fighter for the left! Hypothetically!

In lieu of an exit question, via Newsbusters, here’s Behar wondering why a president who’s under investigation is allowed to appoint Supreme Court justices — another bad argument, but actually better than Dershowitz’s. Later she wondered if Kavanaugh might be just a “quieter version” of Jeanine Pirro. Hoo boy.

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