In my view, there is nothing more critical to the future of this country than confirming Merrick Garland as Supreme Court Justice before President Obama leaves office. Lest we forget, surrendering that nomination is really acquiescence to a theft. That nomination was President Obama's and will continue to be his until he leaves office.
So, there's the idea of having Democrats confirm him before swearing in new Senators, and that is certainly an option. But there is another, as explained by lawyer and Common Cause board member Gregory Diskant in a Washington Post op-ed.
As to the question of "advice and consent," Diskant explains that there is a narrower question within the broader one, which is this: If the Senate adjourns without voting on Garland's nomination, is that a waiver of their consent? Diskant says yes.
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.’ ”
That's established law. Failure to give advice and consent is a waiver of their right to give it, according to Diskant. Here's how it would work.
The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If 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.
Note here, that Diskant is not arguing that this is a recess appointment. It is, instead, the consequence of a choice on the part of the Senate to waive their duties with regard to advice and consent, which leaves the President free to make the lifetime appointment on his own. Also, by the way, the other 100 federal judges the Senate has blocked over time.
And as Diskant notes, this will definitely cause an uproar but that's not a bad thing.
Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.
It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.
I completely agree with him here. Unless there is equal and opposite leverage to make the Senate do their jobs, they will always treat Democratic presidents as illegitimate and they will always block everything they do. I would much rather fill these appointments this way and have the message sent that obstruction will not stand, that we're not willing to break government in order to coddle Republicans.
We now have two ways to save the Supreme Court. One way takes collective courage. The other requires the signature of the President. It's time for action. Right. now.
There is strong disagreement about Diskant's arguments. I'll link to it here and excerpt. But here's the thing: The fact that there is this kind of disagreement in the face of unprecedented obstruction suggests to me that there is enough of a gray area to consider doing it. How is this any more audacious than a call to pardon all the DACA registrants, for example?
First, the idea that the Senate has an affirmative duty to act in order to reject or “veto” a nomination does not square with the original understanding of the Appointments Clause. As Adam White has explained, the original understanding of the Founders considered, and ultimately rejected, a proposal to require the Senate to affirmatively reject a nomination in order to prevent a confirmation. Moreover, as Chief Justice Marshall noted in Marbury v. Madison, nomination and appointment are separate actions. Under the text of the Appointments Clause, the former is the president’s alone, while the latter is conditioned on Senate action.
Read the rest at the link.