Should President Obama “appoint Merrick Garland to the Supreme Court if the...

Should President Obama “appoint Merrick Garland to the Supreme Court if the Senate does nothing?”

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An op/ed column in today’s Washington Post, by an attorney named, proposes a most interesting idea. The essence of the idea is suggested by the title, “Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing.”

The essence of the argument is contained in this passage:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

What I like about this idea is that it finds a way of cutting through the difficulty seemingly created by this two-fold truth about the Republican obstructionism: on the one hand, the Constitution does not explicitly compel the Senate to act, nor forbid the Senate from just sitting on its hands; but on the other hand, what the Senate is doing is clearly in violation of what the founders had in mind when they gave the Senate the task of “advise and consent.”

Mr. Diskant proposes that the president give the Senate advance warning of his intention to take this action, giving the Senate a specified period of time (he proposes 90 days) to do its job. Diskant seems to believe that the threat of the president declaring that the Senate has waived its role would compel the Senate to abandon its present inaction and proceed to do its job.

But if that did not happen, and “the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.”

In that event, Diskant assumes that the Senate would challenge the president’s action, taking the matter to the Supreme Court. That would raise the interesting question about how the four conservative and Republican-appointed justices would rule.

Would they take a partisan position, allying themselves with the Republican Party that wants to maintain control of the Court even if it means unprecedented stonewalling and violation of the clear intent of the founders? Or would they defend the system of “advise and consent” that has been in place for more than two centuries, and refuse to allow the “advise and consent” role to be perverted into a wholesale refusal to consider any nominee the duly-elected president puts forward?

(And what would the outcome be if the conservatives took the partisan route and there were a 4-4 tie?)

I find this idea most intriguing. What do you think? Should the president follow this strategy?

  • Jim Butler

    I believe Obama had a brief chance to appoint someone during a senate recess. And that has been done in the past . Ike did it twice. Now will be difficult as the senate will keep the lights on so to speak for the rest of Obama’s term.

    • notjohnsmosby

      I believe the Supreme Court ruling a few years back said that a recess appointment can only be made for openings that occur while the Senate is in recess. You can’t wait around for the Senate to recess and then appoint someone.

      The Senate was in recess when Scalia died, so Obama could have made a recess appointment that week. It would only have been good until the end of the year.

      • Dave Webster

        If the courts didn’t support the recess appointment they will hardly endorse this half-baked idea.

        • notjohnsmosby

          Agreed. There was a 9-day window where Obama could have appointed anyone he wanted. After Republicans immediately came out and said they would stonewall, I would have appointed someone that week.

          A 4-4 Court doesn’t hurt us, but it would be nice to have some 5-4 wins that set a precedent. The labor union case that came up 4-4 a few weeks ago, it would have been 5-4 if Scalia hadn’t croaked. As is, a similar case from another circuit will be in front of the court soon enough.

          I’m extremely confident that Hillary will win in November, and pretty confident that Dems will retake the Senate, probably with a narrow 52-48 advantage. The question is, will Republicans filibuster Clinton’s pick a year or so from now? Will Schumer have to go full nuclear on Republicans and kill off the filibuster for all nominations?

  • Andy Schmookler

    No, what Diskant is proposing is something different from a “recess appointment.” He’s saying that a case can be made that the Senate has “waived” its rights to advise and consent by having failed to exercise that right. The above-quoted passage makes that case, and the article as a whole might give a more complete picture. But in any event, nothing in what he is proposing has anything to do with the Senate being in recess.

  • XanderDeWijs

    The president should, but I don’t think he will do it, he’s probably scared to motivate their base to come out and keep the Senate.

    But that is a risk onto itself, because they might come out in great numbers.

    I’d say appointing Garland is a win-win, because if they reject Garland, there a path for Clinton’s 35 year old black female judge.

  • Squirrel

    The Senate Republicans stonewalling this nomination will come to regret it. The voting public see this for what it is — corrupting the process of government for partisan ends. Those ends include turning back the clock on women’s control of their own reproductive health and denial of LGBT rights by stacking the court, but it’s not going to work. If they don’t give a fair hearing to President Obama’s nominee, they’ll find themselves facing President Hillary Clinton’s nominee or President Bernie Sanders’ nominee next year.

    • Andy Schmookler

      I fear that the Democrats have been, as usual, too muted in their protests. I’ve read that the Republican base is more impassioned about having their Senators stonewall than the Democratic base is about protesting this unprecedented refusal to allow the man the American people hired to play the role of president (until inauguration day, 2017) perform the functions for which he was elected.

      • http://www.bluevirginia.us/ lowkell

        Example #infinity of why a “political revolution” isn’t going to happen, at least not on the progressive side…

  • Dave Webster

    A waiver in the criminal and civil context isn’t an exact parallel to the Senate refusing to hold a hearing. The Supreme Court would likely invoke the political question doctrine and refuse to reach the merits of the case. I also have my doubts Garland would allow himself to be used as a guinea pig.