Obama could appoint Garland if Senate doesn’t act
The Constitution give the president the power to appoint after nominating with the advice and consent of the Senate. But what if the Senate does nothing?
Click here for reuse options!The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?
…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. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘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.’ ”
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26 responses to Obama could appoint Garland if Senate doesn’t act
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Suzanne McFly April 10th, 2016 at 09:13
If the Presidents actions pisses Congress off, that means he just doing his job properly.
The Original Just Me April 10th, 2016 at 12:29
Yup, Yes, I agree,
Miguel Caparros April 11th, 2016 at 13:34
Appoint while Congress is on their next reces then see what happens!
Suzanne McFly April 11th, 2016 at 17:18
That is a possibility.
KABoink_after_wingnut_hacker April 10th, 2016 at 09:30
Both the republican congress and the republican senate have failed to do their jobs on numerous occasions and continually refuse to govern, so I hope our President, once again the only adult in the room, appoints Garland.
And just watch the heads explode!!!!
The Original Just Me April 10th, 2016 at 12:28
Timing, Timing, Timing.
jybarz April 10th, 2016 at 09:36
Well, it sounds good enough for me, except 90 days is too long.
Give the bastards 30 days, then please proceed with the appointment Mr President if they continue to act like idiots that they always are.
mea_mark April 10th, 2016 at 11:26
It seems to me that if the Senate says they have no intention of giving the nomination a vote they have have already waived their rights and Obama should move forward now. Why wait at all?
The Original Just Me April 10th, 2016 at 12:27
Less Bullshit material to sling before the Election. Leave the Negative on their shoulders until after the people vote.
The Original Just Me April 10th, 2016 at 12:24
I think Dec. 25th would be a nice day to give the Retardicans what they deserve as a Christmas gift.
Mike April 10th, 2016 at 11:13
If O is going to take that path I wish he would have nominated a real progressive. The political fallout will be YUUUUGE, and I’d hate to waste that kind of political capital on a middle of the road moderate that could still screw us over.
The Original Just Me April 10th, 2016 at 12:23
No matter what, there is going to be Republican Trash Backlash. Considering that it is an Election year, a middle of the road appointment is by far the best choice in gaining universal acceptance from the majority of the people. It gives the Trash Talkers less viability to bash the Democrats with.
BaronMatrix April 10th, 2016 at 14:41
The SCOTUS should make ZERO decisions based on political leaning, only interpretation of the laws…
Mike April 10th, 2016 at 15:12
You just contradicted yourself….the only way someone can interpret something is thru their own minds eye…no 2 people perceive things in an identical manner
If you actually knew anything about the law you’d realize it is mostly interpretation … if you had ever read a decision from the SCOTUS you’d realize that even the concurring Justices often disagree with their peers on issues of law but agree with the general decision…
Law is not mathematics, it is governed by language, the single most ambiguous form of interaction we have…it’s a tool humans use like sharp teeth or powerful jaws to defeat their adversaries.
BaronMatrix April 10th, 2016 at 15:58
So you’re saying two different doctors will look at a perforated colon differently…? Or that two different mechanics see something different when they see a cracked engine block…?
No, of course not… Law is written down and related to actual events… The interpretation should only be based on LAWS and
MORALS…
Mike April 10th, 2016 at 16:23
You just crashed your argument into the center divider.
If you have to conflate one profession with another you’ve already gone off the rails.
But yes, it’s called a second opinion and it’s not just common sense, but suggested by the AMA and the American Bar, and yes, even AAA recommends consulting different mechanics when presented with a large repair….
BaronMatrix April 10th, 2016 at 16:34
Laws and precedents are like MANUALS FOR REPAIR….If not read properly you end up with Citizens United or malpractice or failed repairs…
Mike April 10th, 2016 at 16:35
All you did was prove you’re neither an attorney or half way decent auto mechanic…I’m confused now…
Mike April 10th, 2016 at 17:11
BTW, you can’t legislate morality, it’s subjective…like I said….you might want to read the Federalist Papers and see what the FF’s thought about legislating morality…ever wonder why you don’t see a morals clause in the Constitution…???
BaronMatrix April 10th, 2016 at 17:35
Judges don’t legislate… They interpret and we do have morals people are expected to if not have respect…
Anti-abortion laws and closing PP attempts to legislate morality…
The Original Just Me April 10th, 2016 at 12:17
That Big Crease in McConnell’s pant’s seat is from President Obama’s Shoe.
arc99 April 10th, 2016 at 12:50
If the GOP is so hell-bent on obstruction, why not just hold the hearings, hold a floor vote, vote the candidate down and move on. After all, they do control the Senate.
They could do this even if President Obama submits a new name every month between now and election day. It is much easier to defend a full floor vote rejection of the nominee, than trying to defend the concept of not fulfilling your Constitutionally mandated responsibilities.
But lately, sound political strategy does not look to be a strength of the GOP.
amersham46 April 10th, 2016 at 20:08
Have the President consult with the Supreme Count , then appoint him
Elliot J. Stamler April 11th, 2016 at 10:45
I very, very much doubt this is correct. This thesis rests on the proposition that by declining to act on the nomination as a waiver by the senate of its advice-and-consent power. That is an extremely questionable proposition which so far as I know has no precedent in law. It is also a practical impossibility; it would be challenged in the Federal courts right up to the Supreme Court and that challenge would roil the country terribly in the midst of this already roiling political season. Moreover it might take months for the legal challenge to be decided. It also might well so infuriate the Republicans that they would successfully impeach the president and the senate would, as it is Republican, convict him holding his act is an unconstitutional high crime and misdemeanor. The people also would on the whole deem it an unprecedented act of usurpation to the enormous disadvantage of the Democratic presidential candidate who would probably disavow it. And lastly I doubt Judge Garland would want this to be done.
Sorry, Alan, it won’t fly. The president did have a 5-day window of opportunity to appoint Judge Garland as a RECESS APPOINTMENT under his constitutional authority and did not do so because at the time of the announcement the Senate was in recess. As usual the president blew it…as he has blown so many smart things to the great disadvantage of his, and my, own political party.
Miguel Caparros April 11th, 2016 at 13:25
Ignoring action with knowledge of the law is acceptance of the consequence.
Steve Traina April 11th, 2016 at 13:59
C’mon folks. Garland is a tactical sacrificial lamb. Obama knew this (nothing) would happen because the Rs told him so. He nominated Garland anyway to call their bluff. He’s playing chess with them while they play checkers. The Rs are hoping for a Presidential win in order to elect a conservative judge. Meanwhile, Obama nominated the most conservative judge any D would ever nominate. When the D contender wins the Presidency, he or she will begin to nominate much more liberal judges than Garland is. So the Rs are, once again, going up against a guy who is always many steps ahead of them, strategically, and have already shot themselves in both feet and the head by not accepting a guy (Garland) that they have already vetted and approved to the Federal bench once. Garland was their last best hope at a compromise selection. There is an old business maxim: “Your first loss is your best loss.” Any other candidate besides Garland will be much worse for the hapless Rs.