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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Michigan Supreme Court, including the disgraced former Judge Diane Hathaway

Should Court Judges be elected… or appointed?

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A man insults Broward County Judge John Hurley after an unfavorable bond decision, to which he has an astonished look upon his face, who later handed down two consecutive 60-day contempt of court convictions.  Judge Hurley is an elected official.

A question that’s recently been raised to me is:

“Why do we ELECT judges as opposed to having them appointed?”

I’ve always been extremely uncomfortable with elected judges; particularly with educational or other professional credentials required simply to get on the ballot; and the argument is simple: elected judges become constrained and influenced by the political process.

This is a contrast to an appointed judge — someone who is selected by an executive or other governing body, to some term, and is not subject to the political or partisan process otherwise.

With this in mind, I think it’s reasonable to conclude that Judges may find themselves rendering politically-biased and motivated decisions and findings if they are subject to an election.  Indeed, this is evidenced in several case studies, one in particular by Loyola Law Professor Berdejô and Berkley Professor of Business Noam Yuchtman found that in Washington State alone, judges who were up for re-election gave considerably harsher sentences in the time leading up to their election compared to their appointed peers; a figure that sharply declined following their re-election.

Another issue to consider is one of judicial bias — not toward the people, as-such, but toward those who are funders, or otherwise their political “heavyweights.”  For example, the justices of the Michigan State Supreme Court enjoy election, and while on the ballot as non-partison, the individuals are nominated for the ballot by the party.  This not only lends to possible bias, but even “judicial gerrymandering.”  All it would take is one “bought” justice to walk to the offices of all the others and say “Look, I’m facing a re-election battle, this guy could pull out on me if we rule unfavorably against him.”

Possible?

SCOTUS’ Summer 2012 “Flood Week” Decisions…

English: The inscription Equal Justice Under L...

English: The inscription Equal Justice Under Law as seen on the frieze of the United States Supreme Court building (Photo credit: Wikipedia)

With the Supreme Court’s final week of the season upon us, several high profile decisions will likely be rendered — many of which will no doubt have major ramifications in the future.  I think I have an idea of what they’ll do; and I believe the following is going to be announced in short order:

Affirmative ActionWhile I don’t agree with it, it’s true that people of color are NOT on equal footing.  Despite having a Black Commander-in-Chief, people of color still earn, on average, 64 cents on the dollar compared to their white, similarly credentialed counterparts.  I agree that race can never be a BFOQ, so until this problem is solved, I believe minorities deserve special protection.  I expect this to be upheld.

Voting Rights:  Drawing from above, it’s obvious that discrimination still exists — even in the 21st Century.  I expect Federal Oversight in areas that discrimination is historical will continue.  I expect this to be upheld.

Same-Sex Marriage:  Probably the hottest item for the news this season for the Supreme Court, and one I care about too, is Same-Sex Marriage.  Generally, the Court has ruled in favor of civil rights historically — but one with such a broad re-definition of the legal rights involved in marriage and benefits I think is unprecedented.  I see the following happening relating to Same-sex Marriage:

– DOMA will be ruled unconstitutional.  It’s a discriminatory law, and I believe a violation of the Equal Protection Clause — so I expect it to be dissolvedwhich brings us to the next item in the ruling:

– California’s Proposition 8 I expect this to be upheld.  I expect the Supreme Court’s majority opinion to be that that Same-sex marriage should be a States’ Rights issue, and allow States to determine the law when it comes to redefining marriage — allowing States to keep laws on the books that allow for it, and those who have laws against it to do so as well.  That said, I also believe that, in accordance with DOMA being wiped out, that those who are married, Same-sex or otherwise in States that allow it, will now be entitled to receive Federal benefits.

These are just conjecture — based off my experience and personal expectations.  Take them as you will.