If Senate Won't Act, Can the President Appoint Garland?
Attorney Gregory L. Diskant has laid out an interesting approach to force the U.S. Senate's hand regarding the nomination of Judge Merrick Garland to the Supreme Court. Since the President nominated Mr. Garland in March to fill the Court vacancy following the death of Justice Antonin Scalia, the Republicans in the Senate have taken the unprecedented position that they will not hold confirmation hearings until after this fall's Presidential election.
Putting politics ahead of doing the job we elected them to do, the Republicans are hoping for a GOP win this fall and the subsequent appointment of a new nominee by the new President next year.
Mr. Diskant makes the following Constitutional argument, however, regarding the powers of the President and those of the Congress: By not acting, the Senate is waiving its right of advice and consent on this particular matter and, consequently, the President may directly appoint Mr. Garland to the Court.
Quoting from Mr. Diskant's April 8th article in the Opinion section of the Washington Post:
Garland (center) image from newyorker.com
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.
Mr. Diskant goes on to suggest that the President give the Senate a period of time to vote on the Garland nomination (somewhere between 25 days, the average historical time between nominations and confirmations, and 125 days, the longest time between a nomination and confirmation), after which, the President will take the absence of a vote as meaning the Senate has deliberately waived its right to participate in the process. The President could then appoint Mr. Garland to the Court.
Following the appointment, it is likely the Senate would sue the President over his action, thereby leaving it up to the Supreme Court to make the final interpretation regarding this Constitutional question. Some argue that the Court would not want to involve itself in issues surrounding a confirmation process. However, Mr. Garland sites a 1932 case in which the Court held that the Senate could not rescind a confirmation vote after a nominee took office.
On the whole, we think there is merit to Mr. Diskant's argument. If one branch of government refuses to perform their Constitutional responsibilities, whatever those responsibilities may be, then the Constitutional responsibilities of the other branches should come into play. We encourage further discussion and debate of this option and hope it is seriously considered by the Administration.
|
