A Reminder: Merrick Garland is the Only Legitimate Nominee

I’ve been growing more and more frustrated with the Democrats lack of force around the open Supreme Court seat. The sitting President of the United States has chosen his nominee for the Supreme Court. That is the end of the story. Unless President Obama withdraws Merrick Garland’s name, any other nominee is illegitimate. The Senate will break the law if it holds a vote for someone other than Merrick Garland.

The Senate has the power to ‘advise and consent’ the president’s choice. Some members of that body advised Obama not to put forward a nominee this year. That’s within their right – it is giving their ‘advice’. But Obama didn’t take their advice. He is not required to do so. Now the Senate has to fulfill the second part of its constitutionally mandated responsibility: it must consent to, or deny, this nominee. The Senate can filibuster the vote, which effectively denies Garland, as it did with Abe Fortas in an election year, but it is still required to hold that vote. Senate Democrats should forcefully attack Republicans, every day that this farce continues, for not doing their duty.

It does not matter whether the next president is Donald Trump or Hillary Clinton, Bernie Sanders or Ronald McDonald. He or she does not get to choose this nominee for the Supreme Court unless this sitting president leaves office without having put a name forward. And why does only President Obama get to choose? Because he was in office when the seat became vacant.

Many people are worried that a President Donald Trump would be a dictator with fascist tendencies. It’s an understandable concern, but there would be little to worry about if United States government officials followed the Constitution. That document is built to thwart dictators and kings. A dictator is only possible in the United States if other branches of government do not do their jobs. A dictatorship is a system of government, not the actions of a single, all-powerful leader. There is no dictatorship unless everyone around the leader allows him to behave as one.

So this is a test. Every Senator and Congressman needs to make more noise. And every sitting Supreme Court Justice has an immediate obligation to publicly criticize the Senate for refusing to vote on Merrick Garland – as Ruth Bader Ginsburg did, obliquely, this week. Their own legitimacy as the third branch depends on it. If the Justices do not speak out on this basic, non-partisan, reading of the Constitution, they are no longer acting as the last bulwark against tyranny.

When a branch of government makes up new Constitutional rules on the fly – rules such as “the advice and consent of the Senate for SCOTUS nominees does not apply in election years” – the seeds of dictatorship are planted. Those seeds will eventually grow into ugly blooms. If the Senate is allowed to disobey rules on their whim, if they can act with impunity, then so can a President. That is why any nominee that does not arise from the constitutional text as plainly stated is illegitimate.