governing by fiat

Scales of Justice by DonkeyHotey

An op/ed column in Saturday’s Washington Post, by an attorney named, proposes a most interesting idea. The essence of the idea is suggested by the title, “Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing.”

The essence of the argument is contained in this passage:

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.

What I like about this idea is that it finds a way of cutting through the difficulty seemingly created by this two-fold truth about the Republican obstructionism: on the one hand, the Constitution does not explicitly compel the Senate to act, nor forbid the Senate from just sitting on its hands; but on the other hand, what the Senate is doing is clearly in violation of what the founders had in mind when they gave the Senate the task of “advise and consent.”

Mr. Diskant proposes that the president give the Senate advance warning of his intention to take this action, giving the Senate a specified period of time (he proposes 90 days) to do its job. Diskant seems to believe that the threat of the president declaring that the Senate has waived its role would compel the Senate to abandon its present inaction and proceed to do its job.

But if that did not happen, and “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.”

In that event, Diskant assumes that the Senate would challenge the president’s action, taking the matter to the Supreme Court. That would raise the interesting question about how the four conservative and Republican-appointed justices would rule.

Would they take a partisan position, allying themselves with the Republican Party that wants to maintain control of the Court even if it means unprecedented stonewalling and violation of the clear intent of the founders? Or would they defend the system of “advise and consent” that has been in place for more than two centuries, and refuse to allow the “advise and consent” role to be perverted into a wholesale refusal to consider any nominee the duly-elected president puts forward?

(And what would the outcome be if the conservatives took the partisan route and there were a 4-4 tie?)

I find this idea most intriguing. What do you think? Should the president follow this strategy?

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Editor's Note: this story also appeared at HuffingtonPost.com and BlueVirginia.us. Image: Scales of Justice by DonkeyHotey via flickr and used a Creative Commons license.
Andy Schmookler

Andy Schmookler

Andy Schmookler -- who was the Democratic nominee for Congress in Virginia's 6th District in 2012 -- is the author most recently of WHAT WE’RE UP AGAINST: The Destructive Force at Work in Our World-- and How We Can Defeat It.