Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing

[ehrnst]

Here’s how that 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.

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.

https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?postshare=1111466896134293&tid=ss_fb-bottom

[SickOfTheOnePct]

1. Completely unconstitutional

The Constitution doesn't lay out a timeline for when the Senate has to act and the President, any President, doesn't get to just make up a timeline.

[elljay]

6. Correct.

I am unaware of any Constitutional provision or law that defines an implied waiver or that states that an implied waiver in any way negates the requirement for advice and consent.

[Enrique]

2. not Obama's style

he is more likely to keep pressuring the GOP Senate and make them pay a political price for their obstructionism.

[PoliticAverse]

3. "presumably with Garland recusing himself" - lol. 8-0 against. They already ruled 9-0 against...

the President on recess appointments this year in another dispute between the President and the Senate.

[cherokeeprogressive]

4. Help me with the following paragraph...

"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."

Seems to me failure to act is withholding its consent, not waiving it. Is the author saying if the President doesn't get the result he wants in a time frame he's happy with, he can nullify and rewrite Article Two of the United States Constitution to suit his wishes?

[Yo_Mama]

15. Yes, the author is saying that, but why anyone else would believe that defies comprehension.

This reminds me of the trillion dollar coin that was theoretically going to be deposited at the Fed.

[truebluegreen]

16. There is a long-standing principle of law

(going back to English Common Law) that "silence gives consent" so there's that.

[hughee99]

5. Made up law is always the most fun to discuss.

Also, the guy who wrote this would be 100% against the same thing if the president was a Republican. Those are the best kind of laws, the ones that are only a good idea when the right people are in charge.

[Travis_0004]

7. Thats not how I read it.

He (the President) shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

He needs the Senates consent. If they do nothing, they have not given him consent. The senate can not waive their right to consent, as the constitution does not give them that power.

[WillowTree]

8. Based on what fact(s).......

........would anyone think that such action would be even remotely constitutional?

The Constitution says that the President ".......shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.......Judges of the supreme Court". It says nothing whatsoever about time limits or an option on the part of the Senate to "{waive} its right to participate in the process or on the part of the President to assume that they have done so.

We can't just make it up as we go along when the other side doesn't do what we want.

[MohRokTah]

9. Better yet, just have him confirmed in the next Congress.

Obama would have 17 days before he left office after the next Congress takes office.

More than likely the GOPpers will confirm during the lame duck session after the election due to fear over who Hillary will appoint and the probable loss of filibuster for SCOTUS nominees.

[scscholar]

10. If the Senate doesn't disagree, then...

the Senate doesn't disagree.

[Kelvin Mace]

11. Nope, sorry

Also, I don't want Garland.

[Takket]

12. That can be nullified if the Senate calls no Takesee SCOTUSees

at which point the Senate commands the House to engage in a dodgeball match with the winner getting to nominate someone to the supreme court.

[SickOfTheOnePct]

13. Thread winner n/t

[Yo_Mama]

14. Under the Constitution, the President doesn't have a right to appoint a nominee without Consent

save for a recess appointment. There's nothing allowing Congress to waive its consent. There's nothing allowing Congress to pick its own nominee if the President doesn't!!! The President nominates and the Senate consents or does not. These are two separate and equal powers under the US Constitution.

There have been protracted disputes about nominations before between a Congress and a President. Here's an article explaining this:
http://www.pewresearch.org/fact-tank/2016/02/26/long-supreme-court-vacancies-used-to-be-more-common/

The court does look at historical precedent.

One possibility is that President Obama could make a recess appointment and then relitigate the NLRB case (under which probably no valid recess appointment could be made this year). But realistically, he would be out of office before the case could be concluded.

It is likely that the Senate will wait until after the election to decide on Garland - they may wish to confirm Garland if Hillary Clinton is elected.

[tritsofme]

17. Absolute nonsense. This was fantasy fiction when they wrote it, and still is today.

[L. Coyote]

18. we just keep beating them over the head with "obstruction" and "political corruption" because

they are corrupting the process of government. Let's overthrow the republican Congress, once and for all time. It has to happen some day, should be now. We can do it.