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Dem Lawyer: Obama Can Appoint Garland to SCOTUS Without Senate Approval
PJ Media ^ | April 9, 2016 | Rick Moran

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?


TOPICS: Culture/Society; Editorial; Government
KEYWORDS: 0bama; merrickgarland; scotus
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To: JohnBrowdie
wouldn’t surprise me if he tried it. it further wouldn’t surprise me if the court that he packed then upheld his crime.

41 posted on 04/09/2016 6:27:34 PM PDT by Bratch
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To: Kaslin
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.’ ”

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.

42 posted on 04/09/2016 6:28:45 PM PDT by Repeal 16-17 (Let me know when the Shooting starts.)
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To: Kaslin

Utter BS.


43 posted on 04/09/2016 6:30:59 PM PDT by piytar (http://www.truthrevolt.org/videos/bill-whittle-number-one-bullete)
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To: Kaslin

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.


44 posted on 04/09/2016 6:31:06 PM PDT by Jeff Chandler (The Democrats are going into full Alinsky mode against Trump.)
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To: Kaslin

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.


45 posted on 04/09/2016 6:34:48 PM PDT by Rome2000 (SMASH THE CPUSA-SIC SEMPER TYRANNIS-CLOSE ALL MOSQUES)
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To: Kaslin

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.


46 posted on 04/09/2016 6:45:08 PM PDT by Organic Panic
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To: Kaslin; dforest

Crazy aint they? The deranged Trumpanzees prefer to attack Cruz instead of hitlery or Sanders, even in threads that dont involve Cruz.


47 posted on 04/09/2016 6:52:29 PM PDT by Brooklyn Attitude (It's the apocalypse, lets have some fun!)
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To: Brooklyn Attitude

Itreally does sound like something Cruz would do.

Cruz, Hillary Sanders, no ethics and no conscience.


48 posted on 04/09/2016 6:57:30 PM PDT by dforest (Ted took your money and is laughing all the way to Goldman Sachs)
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To: ChildOfThe60s
5.56

We're almost there.

49 posted on 04/09/2016 7:03:42 PM PDT by Salvey
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To: Kaslin

How to start a war in one easy lesson...


50 posted on 04/09/2016 7:04:08 PM PDT by BlueNgold (May I suggest a very nice 1788 Article V with your supper...)
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To: dforest

“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.


51 posted on 04/09/2016 7:04:09 PM PDT by Brooklyn Attitude (It's the apocalypse, lets have some fun!)
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To: Kaslin

No, he can’t.


52 posted on 04/09/2016 7:04:45 PM PDT by terycarl (COMMON SENSE PREVAILS OVER ALL)
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To: Kaslin

This has to be right out of Ted Cruz’s play book.

It’s legal!

Who could object? Right Tedra?


53 posted on 04/09/2016 7:16:12 PM PDT by DoughtyOne (Hey Ted, why are you taking one for the RNC/GOPe team, and not ours? Not that we don't know.)
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To: Impy
Actually the English translation for diskant is treble of which the simple definition is:

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

54 posted on 04/09/2016 7:32:23 PM PDT by Kaslin (He needed theThe l ignorant to reelect him. He got them and now we have to pay the consequences)
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To: Bubba_Leroy

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.


55 posted on 04/09/2016 7:34:23 PM PDT by smokingfrog ( sleep with one eye open (<o> ---)
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To: Brooklyn Attitude

You said it.


56 posted on 04/09/2016 7:34:34 PM PDT by Kaslin (He needed theThe l ignorant to reelect him. He got them and now we have to pay the consequences)
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To: Verginius Rufus

That is true


57 posted on 04/09/2016 7:36:12 PM PDT by Kaslin (He needed theThe l ignorant to reelect him. He got them and now we have to pay the consequences)
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To: Rome2000

Oops, you are correct. The keyword is appoint.


58 posted on 04/09/2016 7:39:53 PM PDT by Kaslin (He needed theThe l ignorant to reelect him. He got them and now we have to pay the consequences)
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To: Brooklyn Attitude

BTTT


59 posted on 04/09/2016 7:41:58 PM PDT by Kaslin (He needed theThe l ignorant to reelect him. He got them and now we have to pay the consequences)
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To: Kaslin

I don ‘t think so.


60 posted on 04/09/2016 7:45:26 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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