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 presidents 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 Garlands 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?
wouldnt surprise me if he tried it. it further wouldnt surprise me if the court that he packed then upheld his crime.
This guy's a lawyer? The advice and consent role of the Senate is not a right of the Senate that it can waive. It's part of the Constitutional process by which appointments are made (except for VP vacancies). No part of the federal government can waive a part of a Constitutional process. Under this moron's logic, the Senate could argue that the Liberal Messiah waived His power to nominate due to His taking weeks to nominate.
Utter BS.
The truly sad thing is if he did this and a Republican rose to the presidency, the Republican would revert to the previous Borkable method.
It’s a logic argument.
The Senate refusal to give advice and consent does not mean the POTUS can’t appoint.
The GOP needs to stop being a bunch of pussies and vote the halfrican s pick down.
Nothing short of Impeachment can be done to Obama if he goes ahead in 90 days and does this, he’s got nothing to lose.
Democrat thugs KNOW they can’t just appoint a supreme court justice. If Obama could it would be his black female lesbian transgendered illegal alien from Somalia.
Crazy aint they? The deranged Trumpanzees prefer to attack Cruz instead of hitlery or Sanders, even in threads that dont involve Cruz.
Itreally does sound like something Cruz would do.
Cruz, Hillary Sanders, no ethics and no conscience.
We're almost there.
How to start a war in one easy lesson...
“Itreally does sound like something Cruz would do.”
Only in your mind, driven by an irrational hatred of Cruz, because he is a threat to Trump to who you are pathologically devoted.
No, he can’t.
This has to be right out of Ted Cruz’s play book.
It’s legal!
Who could object? Right Tedra?
the highest range of sounds used in music and a voice or instrument that has the highest range of sound
The full definition is: 1-- a: the highest voice part in harmonic music : soprano
b one that performs a treble part; also : a member of a family of instruments having the highest range
c:a high-pitched or shrill voice, tone, or sound
d:the upper half of the whole vocal or instrumental tonal range compare bass
e:the higher portion of the audio frequency range in sound recording and broadcasting
2--:something treble in construction, uses, amount, number, or value
And the German translation for Dickhead is is dick Kopf which means being stubborn
Holy crap!
That’s scary!
Something to think about if you’re inclined to skip this election just because your guy is not the nominee.
You said it.
That is true
Oops, you are correct. The keyword is appoint.
BTTT
I don ‘t think so.
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