To: President Donald Trump
President Obama: Confirm your own Supreme Court nominee
In an April 2016 Washington Post op-ed*, prominent attorney and Common Cause board member Gregory Diskant argues that, if the Senate refuses to vote on the nomination, President Obama can simply appoint Merrick Garland to the Supreme Court without getting him confirmed by the Senate at all. Diskant contends that failure to act on a nomination constitutes a “waiver” of the Senate’s confirmation power:
"In most respects, the meaning of the 'Advice and Consent' clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.
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.’
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."
It is time for President Obama to take this unprecedented move and follow attorney Diskant’s advice to confirm his own Supreme Court nominee without the Senate. Is this a radical move? Yes. Is this shaky legal ground? Absolutely. Do others disagree with this legal interpretation? Certainly**. But these are desperate times, and desperate times call for desperate measures. Be courageous, President Obama. You have absolutely nothing to lose.
For those who take issue with this approach, it is time for Obama to take a page out of Donald Trump’s playbook and reply with a simple, “sue me.” What’s the worst that can happen? Our country and our Constitution are on the line.
*https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html
**http://www.huffingtonpost.com/andy-schmookler/should-president-obama-apoint_b_9654812.html
"In most respects, the meaning of the 'Advice and Consent' clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.
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.’
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."
It is time for President Obama to take this unprecedented move and follow attorney Diskant’s advice to confirm his own Supreme Court nominee without the Senate. Is this a radical move? Yes. Is this shaky legal ground? Absolutely. Do others disagree with this legal interpretation? Certainly**. But these are desperate times, and desperate times call for desperate measures. Be courageous, President Obama. You have absolutely nothing to lose.
For those who take issue with this approach, it is time for Obama to take a page out of Donald Trump’s playbook and reply with a simple, “sue me.” What’s the worst that can happen? Our country and our Constitution are on the line.
*https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html
**http://www.huffingtonpost.com/andy-schmookler/should-president-obama-apoint_b_9654812.html
Why is this important?
The Supreme Court impacts us all in very personal ways. Please consider signing a WhiteHouse.gov petition on the same issue: https://petitions.whitehouse.gov/petition/appoint-garland-now-senate-has-waived-its-rights