April 12, 2016

How Obama could get Garland on the court. . .without the Senate

Gregory L. Diskant, Washington Post - The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

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.


Anonymous said...

We have long since passed a disturbing threshold, long abandoning anything resembling the nation's founding precepts.
As if Republican obstructionism weren't enough?
Certainly a validation for those contending fascism is a duopolistic objective.
So, hypothetically, Barry elects to proceed with installing a justice upon the Supreme Court through evocation of Senate waiver, to whom or what authority might those citizens suspicious and less than comfortable with such constitutional innovation appeal? ===the Supreme Court?
One is reminded of a certain admonition from George Washington:
"Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown."
---George Washington's Farewell Address (1796)

Anonymous said...

Washington could have warned about Garland's vote in Speechnow.org v. FEC. Based on the alteration that money is speech.