Posted on 04/09/2016 5:24:24 PM PDT by Kaslin
You're beginning to hear this legal theory more and more as it becomes clear the Senate has no intention of taking up the nomination of Merrick Garland to the Supreme Court.
Does President Obama have the power to appoint a justice of the Supreme Court without getting the Senate's approval? The legal theory rests on an ambiguity in the Constitution and some legal sleight of hand.
Gregory L. Diskant, a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause, penned an op-ed in The Washington Post explaining the theory:
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.
Are the power to nominate and the power to appoint two separate powers? Sounds dubious to me, but then, I'm not looking to trash the Constitution and set a dangerous precedent by appointing a justice without Senate approval.
In practical terms, how would this "appointment" 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.
The Founders never intended that a president have the power to simply appoint a judge to the high court without Senate approval. That much should be clear, even to an ultra-liberal lawyer like Diskant. But given the lack of respect for the Constitution by this president and liberals in general, I wouldn't put it past him.
Do the "spirit" of the Constitution and intent of those who wrote it mean anything anymore?
I think he would get away with it, if he tries. Who is going to stop him?
Let them try it.
If they start down this sh!tty road we’ll have to burn every building in DC and kill ‘em all.
This is why McConnell has been so “opposed”. They’re once again in this together, just figuring out how to con the people yet again.
Wow they really want cwii to start.
Wonder why this jackwagon didnt mention this power when bush ii was in office and the biden said no scotus hearings the last couple years of term 2.
Try it and lets just get cwii going right now.
They think we wont do it too.
It wouldn’t surprise me either
But we know he couldn't care less
Exactly
Real easy folks.
Senate committee considers appointment until January 19th, 2017.
Senate committee votes to reject appointment on January 19th, 2017.
huh?
Bring his name up to the full Senate on December 31 and vote him down.
I sure hope you are not agreeing with that liberal lawyer. If so, than you are out of your cotton picking mind and need to explain yourself
Uh, can we order that fence rail with extra splinters, please?
Repeal the 17th and we’d have a Senate which would have no trouble telling Obama to go F himself.
Dictator Obama fails to understand what the word “with” means.
This so-called president was a dumbass when he started and is even more of a dumbass now.
Ellis Island name change. In the original German the family name was D**khead.
The 90 day period is just pulled out of thin air. Some of Bush’s nominations were left hanging much longer than that. In the early decades there were long intervals when Congress was not in session—Congressional terms began on March 4th but the session normally began in December, so in odd-numbered years you could go nine months without Congress being there to do anything about a nomination. It wasn’t until the 1930s that the date of when a session began was changed.
Not if they are in session!!!
4 to 4 decision with no law on the books it stays as was. O bummer says he would not do this LOL LOL LOL
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