This opinion piece by David Bernstein in the WaPo has a clear explanation of the gentlemen’s agreement on the process for nominations to the Supreme Court. There is no Constitutional imperative that the Senate rubber stamp the nominee much less even hold a hearing. It is more of a Constitutional norm where those ideas arose with regard to how we have vetted nominees in the past – but is not mandated by the Constitution.

I have pointed out before that the gentleman’s agreement has been violated by both parties for reasons of political interest. No different this time, and if someone doesn’t like this it is probably not because they are really invested in upholding the Constitution – it is probably because they happen to be on the other side of the issue politically. Further, this administration calls attention to all of its own unconstitutional actions when it tries to make an argument that says, “You must respect the Constitution!” Puh-lease, now the Constitution deserves respect? Whatevs.

Finally, I kind of feel sorry for Merrick Garland. I didn’t come to this idea on my own – one of my very bright students said that Judge Garland is probably the sacrificial lamb. Obama has set him up to take the fall, knowing full well that even if this nomination is successful, he will not emerged unscathed, and more likely, he may not get through at all and will be badly, personally, hurt in the process. This treatment will be very unfair to him because of the bigger circumstances. His press conference was quite touching seeing how much it meant to him to be nominated, and so it seems probable that the administration made a calculated decision to use him, and the choice was not necessarily because that’s really who they want on the Supreme Court. He’ll be fine if he makes it, but certainly don’t put up someone who would be irreversibly damaged for the long term. He is the oldest of the nominees, so that makes perfect sense – why wouldn’t they choose a younger nominee? – more influence over the long term. They think Garland could afford to be sacrificed to prove a point, that Republicans are evil of course, and to nudge the electorate toward the Democrats in an election year.

Because, you know, as far as gentlemen’s agreements go – there is also a good case to made for the position that it is the gentlemanly thing to do not to nominate a replacement for the Supreme Court in an election year.

And let me just state again for the record that it’s good to let the process play out. Now Obama has made his nomination, and now the Senate can have hearings or not, and have a vote or not. All of those actions are Constitutional. How they are accomplished is political so there is no Constitutional violation. The check and balance exists such that the Senate will either be punished politically or it will be rewarded politically for whatever action it takes. As it should be! #ProudAmerican