General Discussion
Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsObama can appoint Merrick Garland to the Supreme Court if the Senate does nothing
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.
https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html?postshare=1111466896134293&tid=ss_fb-bottom
SickOfTheOnePct
(7,290 posts)The Constitution doesn't lay out a timeline for when the Senate has to act and the President, any President, doesn't get to just make up a timeline.
elljay
(1,178 posts)I am unaware of any Constitutional provision or law that defines an implied waiver or that states that an implied waiver in any way negates the requirement for advice and consent.
Enrique
(27,461 posts)he is more likely to keep pressuring the GOP Senate and make them pay a political price for their obstructionism.
PoliticAverse
(26,366 posts)the President on recess appointments this year in another dispute between the President and the Senate.
cherokeeprogressive
(24,853 posts)"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."
Seems to me failure to act is withholding its consent, not waiving it. Is the author saying if the President doesn't get the result he wants in a time frame he's happy with, he can nullify and rewrite Article Two of the United States Constitution to suit his wishes?
Yo_Mama
(8,303 posts)This reminds me of the trillion dollar coin that was theoretically going to be deposited at the Fed.
truebluegreen
(9,033 posts)(going back to English Common Law) that "silence gives consent" so there's that.
hughee99
(16,113 posts)Also, the guy who wrote this would be 100% against the same thing if the president was a Republican. Those are the best kind of laws, the ones that are only a good idea when the right people are in charge.
Travis_0004
(5,417 posts)He (the President) shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
He needs the Senates consent. If they do nothing, they have not given him consent. The senate can not waive their right to consent, as the constitution does not give them that power.
WillowTree
(5,325 posts)........would anyone think that such action would be even remotely constitutional?
The Constitution says that the President ".......shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.......Judges of the supreme Court". It says nothing whatsoever about time limits or an option on the part of the Senate to "{waive} its right to participate in the process or on the part of the President to assume that they have done so.
We can't just make it up as we go along when the other side doesn't do what we want.
MohRokTah
(15,429 posts)Obama would have 17 days before he left office after the next Congress takes office.
More than likely the GOPpers will confirm during the lame duck session after the election due to fear over who Hillary will appoint and the probable loss of filibuster for SCOTUS nominees.
scscholar
(2,902 posts)the Senate doesn't disagree.
Kelvin Mace
(17,469 posts)Also, I don't want Garland.
Takket
(21,634 posts)at which point the Senate commands the House to engage in a dodgeball match with the winner getting to nominate someone to the supreme court.
SickOfTheOnePct
(7,290 posts)Yo_Mama
(8,303 posts)save for a recess appointment. There's nothing allowing Congress to waive its consent. There's nothing allowing Congress to pick its own nominee if the President doesn't!!! The President nominates and the Senate consents or does not. These are two separate and equal powers under the US Constitution.
There have been protracted disputes about nominations before between a Congress and a President. Here's an article explaining this:
http://www.pewresearch.org/fact-tank/2016/02/26/long-supreme-court-vacancies-used-to-be-more-common/
The court does look at historical precedent.
One possibility is that President Obama could make a recess appointment and then relitigate the NLRB case (under which probably no valid recess appointment could be made this year). But realistically, he would be out of office before the case could be concluded.
It is likely that the Senate will wait until after the election to decide on Garland - they may wish to confirm Garland if Hillary Clinton is elected.
tritsofme
(17,403 posts)L. Coyote
(51,129 posts)they are corrupting the process of government. Let's overthrow the republican Congress, once and for all time. It has to happen some day, should be now. We can do it.