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April 13, 2016

Can Obama Appoint Garland Without Senate?

The Left would certainly like to think so, but the answer is no.

While Supreme Court nominee Merrick Garland cools his heels amid Republicans’ refusal to hold confirmation hearings, Barack Obama is almost surely plotting his next move in this ginned up political drama. Shaming his opponents in the media is unlikely to move the needle in his direction.

Both sides have staked out their position, and there is little that can be done to sway them at this point. The Republicans don’t want to allow Obama the opportunity to pack the Court with another liberal before he leaves office. The Democrats will do whatever it takes to get their man nominated, conveniently forgetting that they practically invented the judicial nominee filibuster or that Obama is the only Senator-cum-president to ever support such a tactic on a Supreme Court nominee.

One trick that Obama might try should the Senate refuse to act on his nomination is to simply appoint Garland directly to the Court. Can this be done?

Gregory Diskant, senior partner at Patterson Belknap Webb & Tyler and national governing board member of Common Cause, says yes. In his view, if the Senate “fails” to provide advice and consent to the president on a judicial nomination, then as a lawmaking body, it is waiving that right.

Diskant cites as example a quote by the Supreme Court itself in United States v. Olano in 1993 that states, “No procedural principle is more familiar to this Court than that a constitutional right 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.”

Diskant further states that based on the historical averages of the time between nomination and confirmation, that 90 days is a reasonable amount of time for the Senate to act on the president’s nominee before demonstrating that it is in some way incapable of acting, thereby giving the president the power to appoint the nominee of his own volition.

Ilya Somin, law professor at George Mason University, says this is bunk, and that Obama does not in fact have the power to appoint Garland if the Senate does not act.

Somin does a careful analysis of the Appointment Clause in the Constitution, and finds that the language is very clear that the Senate is under no specific obligation to act on the president’s nominations. The responsibility is on the president, who “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.”

Somin goes on to explain that there is no such provision in the Constitution that applies to a resulting action to a Senate waiver. If the Senate does not confirm a treaty, it does not become law; it dies. The same holds true for a bill that comes from the House of Representatives.

Obama’s reign of error in the White House is chock full of his whimsical interpretations of how he would like the Constitution to work. In his final months in office, it’s likely that he will pull out all the stops to get that one more liberal on the Supreme Court. The victory for the Left would be huge.

The Second Amendment is perpetually holding on by its fingernails; with one more liberal justice, it could falter beyond repair. Erwin Chemerinsky gleefully outlines the nightmare scenario in The Atlantic, speculating on a constitutional establishment for education, a whole new framework for so-called racial justice, and a general proving ground for the socialist dream that Obama’s acolytes have sought for decades.

It may be within Obama’s constitutional power to nominate a Supreme Court justice at any time before he leaves office, but it is the solemn constitutional duty of the Senate to prevent any nominee from reaching the Court and shredding the very document that governs our nation.

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