Constitution Daily

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Constitution Check: Could Obama bypass the Senate on Garland nomination?

April 12, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a novel argument that President Obama can directly appoint a Supreme Court Justice if the Senate doesn’t act on a nomination.

Obama announcement 535THE STATEMENTS AT ISSUE:

“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 [Supreme Court] nomination of [Judge Merrick] Garland, and having failed to do so, can fairly be deemed to have waived its right.  Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate.  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 the right to give advice and consent.  What date?...90 days is a perfectly reasonable amount of time.

– Excerpt from an op-ed column in The Washington Post on April 10 by Washington, D.C., lawyer Gregory L. Diskant, who is in private practice and also serves as a member of the national governing board of the liberal advocacy group, Common Cause.

“The Appointments Clause [of Article II] clearly implies a power 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.  Throughout American history, the Senate has frequently – surely, thousands of times – exercised its power over nominations by declining to act on them.

 – Excerpt from a commentary about the Diskant column by M. Edward Whalen, president of the conservative advocacy group, the Washington-based Ethics and Public Policy Center, published April 10 on the National Review Online’s Bench Memo.


Borrowing from the Baron de Montesquieu, a French aristocrat and political philosopher, the Founding generation – especially James Madison – wrote the concept of checks and balances into the Constitution they were drafting.  Since then, those in every age who expect the government to work benignly and effortlessly to serve the public good have been frustrated when the machinery of government grinds to a halt, or seems likely to do so.

Some observers are feeling that kind of frustration now, with the impasse in the nation’s capital over the vacancy on the Supreme Court: President Obama has made his choice to occupy that seat in Circuit Judge Merrick B. Garland, but the Republican leaders of the Senate have vowed to do nothing with that nomination until a new president has been elected.

There is much talk of constitutional duty, without a great deal of evidence that the Constitution itself, or constitutional tradition, clarifies in a definite way who has what duty in this circumstance.  If all of the discussion were high-minded, and not deeply infused with warring political preferences, the Garland situation might lead to clarity.  The chances are, though, that the duel between President Obama and his followers and the Senate GOP leaders and their followers will simply go on, often unpleasantly, and that the seat on the court will remain empty for perhaps as much as a year.

The question now arises whether the impasse will be broken by someone doing something constitutionally risky.  The whole idea of having checks and balances between the branches of the national government was to avoid concentrations of power in one branch.  There is room within the Constitution for some play in the joints, but neither branch is free to make up its own powers as it goes along.   As James Madison might say, there lies tyranny.

President Obama has reason to be frustrated after working virtually throughout his tenure with a Republican opposition that has been unrelenting.  He has done what he felt he had the authority to do to get things done and, so far, has been fairly successful when those initiatives have been tested in the courts.  (Another test of this kind comes up later this month when the Supreme Court examines the legality of his ambitious plan to delay the deportation of perhaps as many as five million undocumented immigrants – a move he made because Congress refused to join in writing a broad new immigration policy, which almost everybody concedes is necessary.)

Would Obama now be prepared, given his strong belief that the Supreme Court very much needs to be at full strength, to take the advice of a Washington lawyer that he simply give the Senate a deadline to act on Judge Garland and, if that is not met, put Garland on the court forthwith?  Would Senate inaction clear the way for him to do that?

If he might be tempted by the idea, here are some questions that his advisers may want to ponder:

Where in the Constitution does it say that one branch may define the duty of another branch to use one of its powers by a specified date, or lose that power?

Indeed, where does it say that the Senate forfeits a power that it uses negatively, or not at all?

Is the “advise and consent” function given to the Senate by Article II a “right” that can be waived (like the Fifth Amendment right to silence) instead of being a grant of “authority” that it may use at its discretion?

What in the Constitution would insulate Supreme Court decisions from becoming illegitimate – and maybe unenforceable -- because one of the Justices taking part (and possibly casting the deciding vote) got a seat outside of the usual constitutional process?

Would a president who bypassed the Senate in the suggested way be subject to impeachment, given that it is entirely up to the House to define what amounts to a removable abuse of Executive power?

If the Founders could be consulted on this novel idea, the chances are that they would say that this kind of experiment is not necessary, so it need not be risked.  The cure, they might well suggest, lies with the voters in making their wishes known – not so much about how this vacancy should or should not belong to the next president, but about whether senators who dig in their heels in obstruction of a functioning government should get another term.

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