Another effort to dump the Constitution in favor of a Garland appointment

Barack Obama’s full court media press to try to force Merrick Garland onto the Supreme Court has gone essentially nowhere. The process doesn’t even shift into gear unless Chuck Grassley agrees to kick things off in his committee, and he came out as recently as Thursday saying that he would not flip-flop on his decision. But don’t expect the liberal pressure brigade to give up the fight so easily. The Washington Post had dredged up one legal expert, Gregory L. Diskant by name, who argues this week that the Constitution allows for Barack Obama to appoint Garland anyway, and he’s not talking about a recess appointment here. He argues that the wording of the Constitution should somehow allow the President to skip the confirmation process entirely and simply place Garland on the bench.


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.’ ”

The number of leaping assumptions on display here, completely unsupported in the nation’s history of both the legislature and the judiciary, could probably qualify the author for a spot on the summer Olympics team, but it’s still a fascinating discussion. I absolutely agree that there are phrases and passages in the Constitution which haven’t weathered the test of time all that well as our language has evolved, with some sitting badly in need of 21st century clarification. (What did they mean by High Crimes and Misdemeanors? What exactly is a Natural Born Citizen and which misdeeds qualify as Crimes Against The United States?) But the phrase “with the Advice and Consent” doesn’t appear to require a deep dive into etymology journals to suss out.


First there is the distinction which Diskant draws between “nominate” and “appoint” as two separate functions. Fair enough, I suppose, since they are two distinct steps on the road to seating a justice on the court. But the wording is equally clear that there can be no appointment without it being preceded by a nomination, so the two are locked together. Yet the real question here, as claimed by Diskant, is whether the entire “advice and consent” wording sandwiched between those two steps can simply be ignored if the President feels that Senate inaction has reached some unreasonable timeline. Here’s where the argument seems to go off the rails.

Look back at Diskant’s introductory description where he portrays the words of the founders as somehow indicating a right to, “deny the Senate the right to pocket veto the president’s nominations.” He follows this up with his description of the propriety of viewing a failure to act on a nomination as an abandonment of a right or privilege, in this case the right to advise and either provide or deny consent to a nomination. The fact that the author summons up an arbitrary figure of 90 days as an appropriate time frame for such a finding can be safely ignored since he doesn’t seem to feel that a previous 125 day interlude was unconstitutional, nor did anyone observing the nomination of Louis D. Brandeis in 1916.

Now we can tie those two elements of Diskant’s argument together. In distilled form, he claims that the Founders would nod in approval at setting a time limit for inaction, at which time the powers of the foot draggers are vacated. But he described that process as being essentially “a pocket veto.” Guess where that idea came from?


If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Arguing that the Founders didn’t believe in the idea of the three branches of government being able to engage in a “pocket veto” is a rather tough sell when they wrote that exact idea into the Constitution. Further, when they did intend for there to be time limits on actions, they demonstrate in Article I, Section 7 that they were quite capable of doing so. The President was limited in his ability to affect the legislative process through inaction by a declaration that any bill desired by Congress would be passed into law if he failed to sign it unless the legislature went into recess. But there was a time limit of ten days specified.

There was no time limit placed on the the consideration of nominees. And there is likewise no provision for the President to appoint his nominee without the advice and consent process. This sounds like a case of convenient omission on the part of the author while attempting to construct an argument in favor of Garland’s appointment.

Merrick Garland/Supreme Court

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