Reply to Ed Whelan on the Garland Affair

Abstract

In The Garland Affair, we present historical evidence to suggest that Senate Republicans’ current plan to prevent President Obama from appointing a replacement for Justice Scalia, regardless of the particular merits of his nominees, is historically unprecedented. The plan thus raises a set of pragmatic and constitutional risks that have not yet been fully appreciated and warrant reconsideration of this plan. In a six-part series of responses in the National Review, Ed Whelan promises to show that our essay “provide[s] no reason for Senate Republicans to reconsider their course on the Garland nomination” (emphasis added). But for reasons we explain here, Whelan does not deliver on this promise. Whelan brings his characteristic intelligence to bear on these issues, and he engages very carefully with our evidence and conclusions. As the leader of one of the nation’s preeminent conservative think tanks, Whelan has plenty of incentive to show we are wrong. Despite all of this, our analysis emerges undented — thus suggesting that the problem we describe in our original essay is perhaps even more acute than we initially posited.

Keywords: Garland, Scalia, Obama, Appointment, Vacancy, Supreme Court, Confirmation, Politicization, Grassley, McConnell, separation of powers, presidential power, executive power, advice, consent, advice and consent, whelan