Why didn't Barack Obama try to force the Senate to hold hearings on SCOTUS nominee Merrick Garland?

Question

US Constitution Article 2 says this about the appointments to the Supreme Court:

[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint (...) Judges of the supreme Court

Clearly, it seems to me, the Senate refused to follow the Constitution with respect to Merrick Garland, a judge he nominated to a vacancy on the Supreme Court, and President Obama, swore to "defend and protect the Constitution".

So it seems, it was President Obama's duty as the chief law enforcement official, to force the Senate to hold hearings, like, for example, order the hearings to take place and hold them with whoever the senators would show up, and enforce that order with law enforcement resources such as police and military.

Obama, having a law degree from Harvard, was certainly aware of all of that. Why didn't he fulfill his duty to enforce the Constitution?

Answer 1

In short: separation of (coequal) powers means the President can't order any such thing of Congress. Congress does as it wills, and the constitution has very little to say about whether it does its jobs in any particular time frame, or even in any particular way.

Article 2, Section 3 of the constitution details the two things a President can force Congress to do (emphasis mine):

He shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

So his only power over congress is to force them into session (in "extraordinary occasions") or to settle a disagreement on their adjournment. The last part I highlighted is also particularly relevant to your consideration. While Article 2, Section 1 does specify that he will take an oath to uphold the constitution:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:-"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Article 2, Section 3 above specifies only that he take care to faithfully execute the laws as an actual duty.

Congress has certain constitutional powers and obligations, but it sets its own rules on how it does these things in almost every instance. Article 1, Section 5 includes the clause:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Supreme Court has generally ruled that the rules of the houses are essentially non-justiciable: they are not subject to overview by the judicial branch. Even the constitutional requirement for a quorum in the House/Senate is in the sole purview of the rules of the chambers themselves, and the courts have no power to dictate or question when the requirement has or hasn't been met; only the houses themselves determine this, by whatever means they see fit, and if the rules say there's a quorum, then there's a quorum.

Obama, having a law degree from Harvard, and professional experience in constitutional law specifically (he was a professor thereof for a time), was certainly aware of all of that. At best he could have tried to exert political pressure on Congressional Republicans, say by being more forceful about the matter in public statements. Some people do feel he didn't do enough of this, some even feeling he should have done more even if it was guaranteed to not change the outcome. But that's more of a political contention than a constitutional one.

Answer 2

It's worth noting that Obama actually did attempt an end-run around Congress in declaring that pro-forma Senate sessions were, in fact, a "recess" as defined by the Constitution. As such, he made some "recess" appointments to the NLRB.

The Supreme Court, 9-0, ruled in NLRB v. Noel Canning that it was unconstitutional for him to do that.

We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.

The Supreme Court would have likely viewed any attempt at another end-run in the same way.

Answer 3

The Senate did decide. They decided by withholding their consent, and they decided that holding a hearing was a waste of time when their consent was not to be given. This is how the Senate was intended to work. The president can only nominate. The Constitution does not say the Senate can only deny its consent by holding an up-or-down vote or a hearing. Nothing says it must act at all on the nomination. This is decidedly clear from the historical record.

Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

All numbers are pre-Garland, at about the time Kagan was nominated and received the consent of the Senate.

The 25 no-votes include 11 Presidential withdrawals and 14 withdrawals as the result of the end of Congressional session, when such matters get cleared from the Senate docket.

The historical record supports this interpretation of the Framers intent (same source):

The Framers expressly based the Constitution’s “advice and consent” model on the approach used in Massachusetts, under the State’s Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the “Privy Council,” the body that provided constitutional advice and consent.

But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.

In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.

What you proposed would certainly qualify as a high crime and misdemeanor and impeachable, and high treason as well. Ordering the military to force the Senate to hold a hearing indeed. Only the most lick-spittle and unpatriotic military or law enforcement personnel would carry out such a coup attempt, which is what you are advocating, and a more appropriate response would be to put whomever ordered such into immediate custody.

Answer 4

Each House in Congress can arrange its own affairs:

Each House may determine the Rules of its Proceedings ...

So "How" and "When" the Senate chooses to give or withhold its consent is a matter for the Senate to decide. In the case of Garland, the Senate did not consent to his appointment.

The President can't force the Senate to discuss a particular appointment at a particular time, so the President did not break his oath or contravene the constitution. Ordering the military to act in the way you suggest would be an illegal act. This is why Obama did not do it.

In practice, the Senate was saying "We've already made our mind up on who we will consent to, and Garland isn't on that list." So holding hearings etc. would not have actually resulted in Garland being appointed.

Answer 5

The Senate did not "refuse to follow the constitution". They acted entirely within it.

The idea of the Senate not voting on judicial nominees already has precedent. During Bush 43's presidency, Democrats refused hearings on 11 judicial nominees for almost two whole years. When Republicans took control of Congress in the 2003 midterms, Democrats began filibustering Bush's nominees. In total, there were over 20 judicial nominees that were stalled for upwards of 6 years by Senate Democrats during his presidency.

The bottom line is that there is no provision in the Constitution that requires the Senate to even take up a vote on the matter. And the President has no power to force them to do so.

The consent part of "advice and consent" means that the Senate must vote on and approve presidential appointments to certain offices, but everybody always forgets the advice part. Advice means that the Senate will counsel the President on what candidates they would find acceptable. The Senate is within its rights to say "No candidate you nominate will be acceptable to us." That counts as advice.

The president can, in "extraordinary times" force the Senate to convene, but the Constitution does not specify what an extraordinary time is, and lack of one Supreme Court judge wouldn't qualify anyway. Even if the President did force the Senate to convene, he still couldn't force a vote; such a measure is only designed to fatigue the Senate into a compromise.

The idea behind the Advice and Consent power is that the government rules by the "consent of the governed", and Congress is more accountable to the people than the Executive is, and much more accountable than the Judiciary is (the Judiciary is not accountable to the people at all, except by impeachment and the Advice and Consent clause).

The Framers of the Constitution were not naive. They expected this kind of infighting to occur, which is why the system is designed the way that it is. If there were a very long period of impasse between the President and the Senate over appointees, either they or the President would eventually succumb to political pressures by the electorate to knock it off.

Answer 6

I'm going to add an answer that doesn't exactly answer the question in full, but that hopefully clears up a bit of your misconceptions.

Clearly, it seems to me, the Senate refused to follow the Constitution with respect to Merrick Garland, a judge he nominated to a vacancy on the Supreme Court, and President Obama, swore to "defend and protect the Constitution".

It seems to you like the Senate is ignoring the constitution, that's fine, but YOU are not the final arbiter of law in the country. Neither is the president.

The Supreme Court is.

And the question as to whether or not the senate is following the constitution by ignoring the nomination of a justice has never been answered by the courts. It is an open question.

The constitution provides only one mechanism to answer any questions we may have about its interpretation, the court system. If a president unilaterally decides the answer to an open question about the constitution without getting an answer from the courts and uses police or military force to backup their interpretation, that's called a coup. The president wouldn't be "defend[ing] and protect[ing] the Constitution", they would be irrevocably violating it.

If on the other hand, the court DID rule against the Senate and the Senate STILL refused, the court itself would send law enforcement. Not the president. We saw something similar recently when a county clerk refused to sign the papers for gay marriages after the courts ruled she had to. She was held in contempt of court and arrested.

In short, while the president has a duty to defend the constitution to the best of his ability, the particular type of defense you are describing is not within the ability of a president. Not without ignoring the constitution. And it is pretty hard to defend the constitution by ignoring the constitution. It would be kinda like having sex to preserve celibacy.