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No, Obama Can't Just 'Appoint' Garland If The Senate Stalls His SCOTUS Nomination

With Senate Republicans holding the line on President Obama’s nomination to the Supreme Court, there was a weird argument that ran in the Washington Post that stated the president could just “appoint” Judge Merrick Garland. Yes, that’s right–the Constitution be damned if Obama feels that the Senate is moving too slow on his nomination, he could fill the vacancy. Why? Because the Senate has waived it’s constitutional duty, or something, which is precisely wrong. The Senate is participating in the process by sitting on its hands waiting for the next president to fill the late Justice Antonin Scalia’s vacancy, albeit it’s a course of action liberals don’t like. That’s not a dereliction of duty. Nevertheless, here’s what attorney Gregory L. Diskant wrote over the weekend:


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.

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

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.


Again, where is the fire? We’ve had an eight-member Court before and society didn’t collapse. Heck, at one point in time, only seven jurists were present. Granted, this cannot go on forever, and Republicans have never made such an argument–just that the next president should fill the vacancy in accordance with the Biden law, which stipulates that there should be no confirmations of judicial nominees during an election year. Democrats, of course, say their words are different (not really), and that what was said in the past doesn’t matter. Yeah, I’m sure they would give a Republican president the same courtesy­–they wouldn’t.

Ed Whelan took Diskant’s hypothesis to the woodshed over at National Review, calling it “gobsmackingly stupid.”

1.The Appointments Clause (Art. II, section 2, cl. 2) of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

The Appointments Clause thus restricts the president’s power to appoint officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination.

2. The Appointments Clause clearly implies a power on the part of the Senate to give advice on and, if it chooses to do so, to consent to a nomination, but it says nothing about how the Senate should go about exercising that power. The text of the Constitution thus leaves the Senate free to exercise that power however it sees fit.

3. Throughout American history, the Senate has frequently—surely, thousands of times—exercised its power over nominations by declining to act on them. (The same Appointments Clause applies equally to Supreme Court nominations and other nominations, so any constitutional argument about what that clause means must apply to all nominations.) That’s been true of judicial nominations generally and also of Supreme Court nominations. As law professor Larry Tribe once put it, “The Senate has ways of blocking Supreme Court nominations other than by straightforward rejection in a confirmation vote.” To illustrate the point, he cited an instance in which the Senate “killed” a nomination “by simply refusing to act upon it.”

4. Thus, the factual premise of Diskant’s waiver argument—that the Senate, by refusing to process the Garland nomination, is “simply fail[ing] to perform its constitutional duty”—is flatly wrong. The Senate is performing its constitutional duty in the manner that it sees fit.

5. Diskant’s waiver argument is also manifestly wrong as a legal matter. Diskant is essentially arguing that the Appointments Clause gives the Senate a veto power that it must exercise affirmatively in order not to waive its ability to block a nominee. Thus, he argues that the Senate does not have the “right to pocket veto the president’s nominations.” But the Framers specifically rejected the veto model (see point 3 here), and the lack of any time frame on the Senate’s power to act simply confirms the broader point that the Constitution leaves the Senate free to act as it chooses.


This is typical of liberals when they don’t get their way–they just make stuff up.

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