How Merrick Garland can outfox Republican obstructionists.

A Modest Proposal for How Merrick Garland Can Outfox Republican Obstructionists

A Modest Proposal for How Merrick Garland Can Outfox Republican Obstructionists

The law, lawyers, and the court.
March 29 2016 6:22 PM

The Reverse Bartleby

A modest proposal for how Merrick Garland can outfox Republican obstructionists.

Merrick Garland.
Merrick Garland.

Photo illustration by Lisa Larson-Walker. Photos by Joshua Roberts/Reuters, Jason Reed/Reuters, iStock/Thinkstock.

When it comes to the Supreme Court, Democrats have long been in a severely disadvantaged posture with respect to Republicans in terms of the “Intensity Gap.” This simply means that for decades now, Republicans have organized their electoral politics around the composition of the high court—they have voted about it, fundraised over it, and managed to persuade their electorate that this is a vital issue in both presidential elections and Senate contests. Democrats certainly understand that who sits on the high court matters. But Democratic candidates rarely talk about the court directly and Democratic voters sometimes fail to connect court decisions—and the makeup of the current bench—to policy outcomes (voters being forced to line up for hours to vote last week in Arizona after the Supreme Court ruling that gutted the Voting Rights Act; the near-demise of public sector unions at the hands of the court on Tuesday).

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

What that means is that while GOP senators are now caught between pincers that threaten them with a primary challenge if they are not sufficiently intransigent over the Supreme Court nomination of Merrick Garland on one hand, and the loss of a general election if they are not sufficiently reasonable about Garland on the other, Democrats are still struggling to find a way to even talk about the Garland nomination that can gin up some enthusiasm on the left.


Meanwhile, all is not right at the highest court in the land. Despite efforts to signal that business as usual is pouring forth easily from the marble palace at 1 First Street, NE, Tuesday brought some signs that the opposite is true. First, we had a 4–4 split in that major case about the future of public sector unions, revealing to one and all that Justice Antonin Scalia’s empty seat is certain to make interest groups and wealthy operators on the political right very angry. Then, later in the day, the court handed down a truly baffling order in last week’s Zubik v. Burwell contraception mandate case asking the parties for further briefing. The order is one of the strangest things I have ever read. It demands the two parties comment on an imaginary workaround that would allow religious objectors to the Affordable Care Act’s contraception mandate to notify their insurers that they object to providing birth control, but in an even more subtle fashion than the workaround already given them. One can almost hear Anthony Kennedy hollering between the lines: “Give me a legislative FIX, stat,” through all the legalese.

Now one problem with the Intensity Gap is that Democrats continue to be mainly just confused and confounded by the GOP intransigence that has led to this chaotic state of affairs on the high court. Never before have we encountered a simple refusal to have meetings with a nominee, much less a refusal to have hearings or an up or down vote. Adding to the confusion is the shape-shifting nature of the arguments proffered for the unprecedented obstruction, that has run seamlessly from the discredited “Garland Hates Guns,” to the unconstitutional “Let the People Vote,” to the inadvertently honest “Wait, Then We Won’t Control the Court.” Each argument is, of course, silly and that is what makes responding with anything other than open mockery, fabulously open mockery, or unsatisfying schadenfreude so very difficult.

Another problem for Democrats is that in addition to the Intensity Gap, the 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. That they continue to do so despite the Democrats’ refusal to join in is in some ways impressive, even if it makes for a complete lack of meaningful dialogue. The logic behind the GOP position here is that the public either has grown to expect daily tantrums from their Republican representatives, or that maybe the tantrum will eventually become effective by the time November rolls along.

I have myself been flabbergasted by the sheer weightiness of the Insanity Gap, and my own inability to make “but this is so very stupid” into a compelling argument to overcome it. Perhaps, then, 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. But how, you might ask, how can you shame the shameless? How can you call out those in government seeking to take down government? If an Escher staircase falls in the woods, what can a Democrat do? A modest proposal follows.


Judge Garland has been nominated by President Obama. Senate Republicans refuse to give him 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, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in the manner of George Costanza.

Really, what could the other justices do? They aren’t going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And 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.) But more urgently, this is the kind of action—OK, “stunt”—that would draw attention to the fact that just because GOP senators want to pretend that Obama’s Supreme Court nominee is invisible, doesn’t mean that he has to play along. By my playbook, Garland could show up for work in a black robe every day in October, participate in oral arguments with a handful of incisive questions in November, and even start to write a few modest opinions in December, demonstrating how real his nomination is. By January, nobody will even remember that he never got a hearing!

What I love best about what I am calling the Reverse Bartleby is that 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 out-absurding the absurd, and 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. The additional points being made would include that the court functions better with nine judges than with eight, that if Republicans refuse to hold hearings, well, someone should solve that, and that advise and consent doesn’t mean that the NRA or the Koch brothers get a veto.

Do I believe for a nanosecond that Garland would sit on the bench and quietly say “I would prefer not to,” as Chuck Grassley himself arrives to drag the judge bodily off the bench next October? No I do not. But do I believe that this would be the single most fantastic thing that could ever happen to resolve the blockade of hysteria that now threatens both the court and the country? Yes I do. I also believe that come November, if and when President Donald Trump were to attempt to seat his new Supreme Court nominee, Justice Miss Tennessee, this is precisely the type of thing she would be doing. Not that this makes a Reverse Bartleby morally or politically acceptable. But as the Republicans on the Senate seem to understand, anything is OK when there’s a court seat to fill. What better turnabout than simply filling it?