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?
5.56
wouldn’t surprise me if he tried it. it further wouldn’t surprise me if the court that he packed then upheld his crime.
More DIM/LIB criminality. Justice needs to arrive for these traitors to the Constitution.
So then they need to consider him,wait as long as possible then reject him. Start over, repeat as necessary.
The president can only make recess appointments.
LOL! Gregory L. Diskant has an opinion and like (you know what) everybody has one.
Tar, feathers, fence rail
Pretty sound argument.
“If you do not consent, I will interpret that as consent.”
Just try it.
It is never a good tactic to telegraph your true intent to the enemy unless you have overwhelming power.
Especially when dealing with anenemy as unscrupulous and as scurrilous as the democrats.
What the republicans should have done is kept their mouths shut about their intent.
Just say “We will perform our constitutional duties.”
and just drag out the process.
If it comes down to the wire and they have to start holding hearings just do it.
Then Bork the heck out of the vetting process.
Sounds like the way Cruz operates.
We are nearly there as it is.
Maybe people will grovel and crawl to his feet in some reception room, bringing baubles, money, 1st born, women, to get a ‘judgment’ boon. Makes as much sense as this so-called ‘argument.’
The Obamatization of Amerika continues in overdrive. Stalin would be proud.
Nope.
But this is much more possible. Under the 20th Amendment, the new Congress takes office on January 3 but the new President does not take office until January 20.
If the Democrats retake the Senate (which is fairly likely at this point), then regardless of who the next President is, Senate Majority Leader Chuckie Schumer will have almost 3 weeks to easily push through confirmation of all of Obama’s nominees on a party line vote, from the Supreme Court to the district courts. There will not be a damned thing that the minority Republicans will be able to do to stop it.
> “...what to make of things when the Senate simply fails to perform its constitutional duty”
The Senate has no time limit to perform such ‘duty’. It has withheld advice and consent for now, that in itself translates to disapproval for a time, and the Senate has already declared that the matter will be taken up after the new President is sworn in. So the Senate will indeed perform its ‘duty’ on their own schedule, not Obama’s.
Stalin, like 0buttbongo, was a kommoonity organizer..
Which is why the Republicans were stupid to telegraph their intent.
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