In an op-ed column for WaPo, attorney and former SCOTUS law clerk Gregory Diskant opines on the role of the Senate in confirming new Justices:
Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.
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.’ ”
If the Senate fails to act in a timely manner,
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.
A fascinating way to break the shame logjam of the Senate. Ilya Somin at The Volokh Conspiracy (hosted by WaPo), while liking Justice Garland, disagrees:
UC Irvine Law School Dean Erwin Chemerinsky argues that the Senate has a duty to vote on Supreme Court nominations because the Appointment Clause states 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” (emphasis added), and the word “shall” implies a mandatory duty. But “shall” seems to apply only to the actions of the president, not to what the Senate might do. Otherwise, as Michael Ramsey points out, it would have to be interpreted as indicating that the Senate “‘shall give advice and consent,’ and no one thinks the Senate ‘shall’ consent.” And if “shall” does not create a duty to consent, it also does not include a duty to offer “advice,” since the “shall” that might refer to both is exactly the same. If such a duty to hold a vote does exist, it would mean that the Senate has repeatedly violated on the hundreds of occasions when it chose not to hold a vote on the nominations of judges and other presidential appointees covered by the clause (such as ambassadors and consuls, for example).
Dan Abrams of LawNewz also believes this is a fallacious approach, and then commits his own mistake:
There is also no doubt that it would spur intense outrage by the American electorate. As evidenced by the rising popularity of presidential Republican nominee, Donald Trump, U.S. citizens are weary of the Washington D.C. establishment, and their supposed propensity for skirting the will of the American people. An appointment without the ‘advice and consent’ of the U.S. Senate, would surely be looked at as nothing short of a blow to the separation of powers. Republicans are already critical of Obama for his extensive use of executive orders (which have, of course, been used by Presidents on both sides of the political aisle). This would only add more fuel to the fire.
But, according to Gallup, Trump’s not all that popular outside of the constricted confines of the GOP base:
That said, such a maneuver would embitter an already embittered, and embattled, right wing, and while the ideologues would rail against the President, those who can think for themselves would realize that the Senate merely had to convene and vote Merrick down.
Paul Mirengoff of PowerLine wonders about the Senate suing over this event:
What would likely happen if Obama acts as Diskant suggests? Diskant says the Senate would sue to remove Garland from the Court. That’s a certainty. However, if the suit dragged on into 2017 and Democrats won control of the Senate, that body might well withdraw the suit.
If the Supreme Court decided the suit, with Garland recused, the result might be a 4-4 vote. It’s possible, however, that one or more liberal Justices would balk at writing rules for how the Senate must treat judicial (and other) nominees. They might also be reluctant to undermine the public’s confidence in the Court’s legitimacy by approving of a power play as naked on the one Diskant has in mind, particularly since the Justices can be pretty confident that a new Justice will be confirmed early in 2017.
It’s possible that Chief Justice Roberts, who seems particularly sensitive to issues of judicial overreach and public perception of the Court, might refuse to permit Garland to sit. This seems unlikely, though.
Mirengoff forgets Chief Justice Roberts voting to uphold the ACA at a critical moment. I think Roberts is a wildcard who might well relish having an active court engaging with the issues of its own existence.
National Review’s Ed Whelan has little use for this gambit, but I have to wonder if he’s confusing tradition with correctness:
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.”
Sure, they’ve just sat on many nominations – and what damage has that done to the nation? How has it contributed to the notorious backlog of cases? I think Ed’s point is counterproductive and should lead to more discussion about Senate intractability when it comes to Federal judges being confirmed – or denied. Just sitting on them is intolerable.
Jonathan Adler at kwotable, after rejecting the legal arguments, notes:
Finally, let me note that Ilya and I are hardly the only ones to reject Diskant’s position. The article has prompted derision and scorn from quite a few informed observers across the political spectrum. On the right, Ed Whelan assailed the op-ed’s “gobsmacking stupidity” on NRO’s Bench Memos. On the left, Ian Millhiser of the Center for American Progress tweeted: “I want Democrats to gain a majority on the Supreme Court more than I love life itself. But this argument is dumb.” Other commentators were equally unimpressed with Diskant’s “bad argument,” including professors Christopher Walker, Eric Segall, and our own Orin Kerr.
And, while the approach seems untenable in the end, I cannot help but remember this bit:
http://www.youtube.com/watch?v=TqGOEmrrtO0
All they have to do is hold the hearing and vote down Justice Merrick’s nomination, and that would be it – none of this reputation-rending uproar. Instead, they listened to this mook and we’re all tangled up, rather than at least making progress on discovering a mutually agreeable Justice.
Which is the entire point of the matter. It almost makes you wish we had professional rulers, rather than this pack of raging amateurs.
Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself. Mark Twain
