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The Most 'Wicked' Solution To The SCOTUS Nominee Impasse

This article is more than 3 years old.

Picture it: it's January 2017. A long and bitter presidential election year has finally ended and a new year of a new president and U.S. Congress awaits. If the current Republican majority in the U.S. Senate has its way, there will still be no confirmed replacement for the deceased U.S. Supreme Court Justice Antonin Scalia.

In this hypothetical future, Judge Merrick Garland will still be waiting for a hearing in the Senate, but the potential of a new choice of an incoming President Donald Trump — or President Hillary Clinton or President Bernie Sanders or President Ted Cruz, et. al. — could dramatically influence the decisions of a future Senate.

For 13 days before Inauguration Day 2017, that new Senate can do something about it.

It's based on a small technicality — one that George Washington University Law professor and constitutional law expert Jonathan Turley calls "a wicked scenario" — but from January 3, 2017 (when the next Senate is sworn in) to January 20, 2017 (when the next President takes office), said new Senate is technically able to consider any nominations that President Obama (who will remain in office at that time) sends their way.

"The actual new Senate — let's say for a second that the Democrats take the Senate — the new Senate comes into power before the new President, and they could readily consider this nomination," Turley told us today.

In such a scenario, the sturdy, familiar moderate choice of a Judge Garland would be preferable to the predictably more liberal or conservative choice of whomever the incoming President at the time may end up being.

It's an entirely unlikely scenario, to be sure — but that doesn't make it any less wickedly technical.

Here the full conversation on Judge Garland's nomination here

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