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Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing

If the Senate refuses to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court, Obama has the Constitutional authority to declare that the Senate has failed to exercise its right and declare the appointment done, says Gregory L. Diskant, senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause, writing at the Washington Post.

The Senate would most likely sue.

It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.

I love this idea just in anticipation of hearing the Republicans scream.

38 thoughts on “Breaking the logjam

    1. Philip Gill

      Seriously? Explain to me your background to make this judgment? Are you a lawyer? A constitutional scholar? Besides your bias against Obama, what are your qualifications to make this statement?

      Reply
    2. Philip Gill

      Glad to hear it! At least you have some context and knowledge, unlike the rest of these jokers. So tell me, what can’t he, when the Senate refuses to its constitutional obligations? Haven’t they abdicated their responsibilities to the chief executive?

      Reply
    3. Philip Gill

      By the way, the guy who wrote that article is a lawyer too. Yes, you can have honest disagreements on interpretations of the law. But why is he wrong and you right?

      Reply
    4. Richard Santalesa

      My nightstand reading speaks for itself. I follow numerous Constitutional experts and scholars’ work (Volokh, Epstein, Kerr, Adler, etc). None concur with this person. Nor do I. There is no timeframe for the Senate to act in the Constitution and the clause in Art. 2, Sec 2 contemplates three sequential acts. The Senate has plenary power to reject or confirm a nominee. The President cannot sidestep that. As Gouuverneur Morris noted, “As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”

      Reply
    5. Meadhbh Siohban Hamrick

      if there is no implied timeframe for decisions to be made, why was the constitution explicit about recess appointments?

      Reply
    6. Richard Santalesa

      Good point for but that’s a time limited appointment. You can’t go full appointment without Senate consent. No founding document supports that approach. Plus note that the Constitution doesn’t say SCOTUS must have 9 members. Congress can say we are changing the court to 7 members going forward so the next one to die that brings us down to 7 and we are not confirming anyone.

      Reply
    7. Meadhbh Siohban Hamrick

      my point is the framers understood the concept of time-frames, and that harm can occur if various governmental postings are left empty for an unreasonable period of time.

      also. are you suggesting we should simply ignore laws that set the composition of the court to eight associates + one chief? (i know you’re not saying that, but my point is congress went to the trouble of passing a law saying what the composition of the court is. saying “oh, this can be anything we want it to be” without passing another law changing the composition of the court seems dangerous.)

      Reply
    8. Richard Santalesa

      I’m saying very clearly and very directly that we are in a post-Constitutional landscape. And there is no enforcement mechanism at work. If Obama attempted to place someone on the court without Senate consent you can expect a political firestorm the likes of which we have not seen.

      Reply
  1. Jamey Charapp

    Where in the constitution does it say that the president has the authority to declare the senate failed to exercise its right and the president can simply declare the appointment done? I am sorry but if that were the case, why even have the congress or senate.

    Reply
    1. Jamey Charapp

      No Philip Gill but evidently you are so please do show me where the executive branch gets this new power…

      Reply
    2. Philip Gill

      The Senate has clearly refused to do its job. It has given up its rights. So why shouldn’t he do it? I’m not saying you’re wrong, I won’t to know your reasoning for this, other than your obvious bias against Obama.

      Reply
    3. Jamey Charapp

      Again where in the constitution does it state this right? Simply show me where if you can.

      Reply
    4. Dani McKenzie

      If you read the article, it goes into detail about how to determine if the Senate is waving it’s right to “advice and consent”.

      Reply
    5. Meadhbh Siohban Hamrick

      Jamey, why do you support the senate not performing their constitutional duty?

      Reply
    6. Mitch Wagner

      Jamey Charapp Meadhbh Siohban Hamrick raises a good point. I concede that the plain language of the Constitution states that Presidential appointments requires the approval of the Senate. But the plain language also requires that the Senate act. And by failing to hold hearings and vote, the Senate is in abrogation of its Constitutional duty. What happens next?

      Reply
    7. Richard Santalesa

      Congress is suppose to come up with a budget each year per Art. I, Sec. 7 & 8, cl. 1,2. The last time they really did so was 1997. We now have these annual crapulous Omnibus bills instead. You think any thing will happen to Congress for not acting on a POTUS nomination?? Bwhaaaa ha haa. Sorry had too much Coke® squirting out my nose.

      Reply
    8. Meadhbh Siohban Hamrick

      Richard Santalesa are you suggesting the constitution does not have inherent severability? all it takes for us to ignore the constitution as a whole is to point out one clause has been ignored?

      Reply
    9. Richard Santalesa

      I’m saying nothing more or less than that no one has held Congress (or the President) to account lo these many years. You’re going to start now? On this? Good luck.

      Reply
    10. Meadhbh Siohban Hamrick

      oh good heavens, richard. if we start blaming congress (or the POTUS) for any little thing they do wrong, we’ll be here all day!

      Reply
  2. Mitch Wagner

    Now that I’ve read a couple of arguments against, the theory seems screwy to me. Ah, well, it was fun to think about.

    Reply
  3. Gary Stock

    Easy solution for the dilatory cowards in DC: Hold the damned hearing — which is their DUTY — and vote the nominee down. Duh.

    Failing that, they have abandoned their role utterly, and Obama MUST act.

    What if this had begun seven years ago? What if there had been a second vacancy, then a third, then more? If the founding fathers had expected lazy seditious bastards to take over Congress, they’d have been more explicit. Get ‘er done.

    Reply
  4. William Terdoslavich

    I am cautious about this. You are playing with fire.

    Consider that any power you grant a president (D) can also be used by a president (R). If Obama decides to put Garland in along this line of reasoning, then there is nothing stopping a future Republican president from installing a supreme court justice who stands politically to the right of Atilla the Hun.

    Reply
  5. Richard Santalesa

    Plus note that the Constitution doesn’t say SCOTUS must have 9 members. Congress can say we are changing the court to 7 members going forward so the next one to die that brings us down to 7 and we are not confirming anyone.

    Reply
    1. Shawn Tuma

      Richard Santalesa Oh dear God — all I can say is to take screenshots of people posting these things and save them in Evernote so when hypothetical President Trump* places a hypothetical David Duke* on the Supreme Court and they lose their minds, you can just paste it right back at ’em! ha!

      * my usage of the hypotheticals of Trump or Duke are not intended an indication of support for either, just an illustration to make a point!

      Reply
    2. Scott Creighbaum

      Damn Shawn
      Your friend Philip might be a lib, huh? Butt hurt with anyone who dares to have a different opinion than he does

      Reply
    3. Shawn Tuma

      Scott Creighbaum hahaha I didn’t see it — but you said lib and that’s all I need to see!

      Reply

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