There still is a way for Merrick Garland to be on the Supreme Court. As an article in The New Republic newrepublic.com/… points out, President Obama can make an interim appointment on January 3rd when Congress is in recess. There is a precedent.
In October 1956, Justice William Brennan began his court tenure after President Eisenhower made a recess appointment. As The New Republic notes:
Article II, Section 2 of the Constitution states, ‘The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate’…. Any appointments made in this fashion expire at the end of the next Senate session. So a Garland appointment on January 3 would last until December 2017, the end of the first session of the 115th Congress.
President Obama could make such an appointment during the inter-session recess between the time of the old Congress and the new Congress.
While Republicans have no hesitation in breaking any norm in seizing power, Obama would likely be reluctant to do this as it would be highly controversial and Democrats rather than fight are willing to roll over and let Republicans and Trump dominate.
David Dayen further writes in The New Republic:
Congress understands the potential for inter-session recess appointments because Representative Chris Collins (a member of the Trump transition team) filed a constitutional amendment this year to end them. Collins specifically cited the Garland issue as his justification: “It’s been 111 days since President Obama nominated Merrick Garland for the bench and, while the Senate has continued to hold their ground on proceeding, we need to ensure the president cannot fill this slot—in the form of a recess appointment.”
Unless the public barrages the White House, Congress, and the media to insist that Obama appoint Garland, Trump and the Republicans will fill the empty Supreme Court vacancy and millions may suffer as a result.
