Can Obama directly appoint to SCOTUS?

“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, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
— Constitution of the United States, Article II, Section 2

The President has floated the name of Chief Judge Merrick Garland to the Supreme Court, succeeding the late Antonin Scalia.

However, the current Senate leadership continues to doggedly state they refuse to meet with or even consider the candidate, much less place the candidate up for a vote. This would seem to stop the candidate dead in his tracks to his place on the Supreme Court Bench.

…or could it?

The Constitution is clear: nominations for “judges of the supreme court” must be made with the “Advice and Consent of the Senate.” However, is failure to vote for or against (i.e., taking no action) a statement waiving its right to act?

Indeed, Diskant, the senior partner of law firm of Patterson Belknap Webb & Tyler opined in the Washington Post that this is indeed the case.

“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 nomination of 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 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.”

This would break what Diskant noted as a “logjam” in our current legislative system. but could also set a new precedent in Presidential appointments: making the Senate act in one way or the other, requiring it to exercise its duty: even if its vote is in the negative, its still exercising its duty. Could this help break the ice of the current system of partisan stonewalling, by strongarming the opposition to act?

This isn’t entirely unprecedented — when the Senate was holding proforma sessions to stonewall Obama’s nominations, particularly to the National Labor Relations Board back in 2012, President Obama unilaterally declared the Senate out-of-session and exercised his appointment power and named his candidates to the Board. While the Supreme Court later ruled these exceeded his ability, this is somewhat different — the Senate is simply not willing to act; and therefore is not approving, but not denying either — and is taking no steps to decline his nomination.

I believe this very well could be a point: by giving the Senate ample time to act, and its refusing to, the reasonable person, and a living Constitution could accommodate the notion that the Senate is willing to waive its right to stop, and therefore grants an approval by being properly notified, and declining its right to stop the nomination and appointment.

Could this set a new precedent in Presidential appointment power? How will the Supreme Court view it; as power grab, or a break in Congressional gridlock?

Further Reading:

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Political Comebacks… Are they possible?

265005_10151214146056817_1276640492_nMany political careers — particularly in the late 20th and this, the early 21st century thus far, have ended in embarrassing ruin.  Bill Clinton, leaving office with some of the highest presidential approval rates in history, is often cited for jokes such as “having made the word ‘blowjobpolitically correct,” or having all sorts of goofy images posted of him that would otherwise be looked over as innocuous.  On the other hand, George W. Bush left office with among the lowest approval ratings in history — but in his retirement, the vehement rhetoric launched toward him, and his dismal approval ratings, have been softened by time.

Other political post-mortems have been much more hilarious.  Former Congressman Anthony Wiener resigned in disgrace after he accidentally posted a photo of himself on Twitter; which blew open a scandal of himself sending less-than-fully-clothed pictures of himself to women online.  Having resigned nearly two years ago, he’s now looking at making a comeback as a candidate for the Mayor of New York.

George W. Bush has essentially retreated to a private life — arguably because of the overwhelmingly negative view the people had on his Presidency; whereas Bill Clinton, while still as polarizing, has enjoyed overwhelming public support — even in the ever-existing shadow of his own sexual scandals in office.

Are such political comebacks possible?  Could George W. Bush or Bill Clinton [or Anthony Wiener in this case!] make a comeback in a positive light, or would their scandals and disgrace continue to follow them?