The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a recent 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.
This argument is wrong for multiple reasons. Advice and consent is a prerequisite for appointment, not a "constitutional duty" of the Senate. Nothing in the Constitution requires the Senate to act on nominations in any way.
UC Irvine Law School Dean Erwin Chemerinsky argues that the Senate has a duty to vote on Supreme Court nominations because the Appointment Clause states that 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" (emphasis added), and the word "shall" implies a mandatory duty. But "shall" seems to apply only to the actions of the president, not to what the Senate might do. Otherwise, as Michael Ramsey points out, it would have to be interpreted as indicating that the Senate "'shall give advice and consent,' and no one thinks the Senate 'shall' consent." And if "shall" does not create a duty to consent, it also does not include a duty to offer "advice," since the "shall" that might refer to both is exactly the same. If such a duty to hold a vote does exist, it would mean that the Senate has repeatedly violated it on the hundreds of occasions when it chose not to hold a vote on the nominations of judges and other presidential appointees covered by the clause (such as ambassadors and consuls, for example).
In addition, there is no provision for such waiver of the Senate's confirmation power in the Constitution. If the Senate refuses to consider a treaty signed by the President or a bill passed by the House, no one would seriously argue that the treaty or bill in question should be deemed a law because the Senate has somehow "waived" its authority. Rather, the treaty or bill remains unenacted unless and until the Senate passes it.
Even if the Senate does have some sort of duty to offer "advice" on the nomination, it is not required to do so by holding hearings or taking a vote. The Senate can refuse consent by voting a nomination down, by filibustering it to keep it from coming to a vote (as then-Senator Obama advocated doing with the nomination Justice Samuel Alito), or simply by doing nothing. Indeed, the Senate has, historically, rejected numerous judicial nominations by simply sitting on them indefinitely, including a number of prominent cases involving resistance by Senate Democrats to judicial nominees put forward by President George W. Bush.
The Constitution gives the Senate virtually unlimited authority to "determine the rules of its proceedings," including those for considering judicial nominations. This differentiates the situation from waivers of criminal defendants' procedural rights (mentioned by Diskant), which must be asserted in the context of legal proceedings controlled by others. When it comes to Senate proceedings, there can be no "failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." There is no tribunal with such authority, other than the Senate itself.
There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent… The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.
Diskant suggests that Obama could simply have Garland take a seat on the Court and begin participating in cases, pending resolution of a possible lawsuit challenging the constitutionality of the appointment. Obviously, any decisions Garland participated in would likely be tainted as a result (especially if he cast the decisive vote). Moreover, what happens if Garland tries to set up a chambers in the Supreme Court building and begin participating in cases, but Chief Justice John Roberts refuses to let him? Would the president send federal marshals to force the Supreme Court Police (who answer to the Court rather than the president) to let Garland in? Such scenarios and others like them are best avoided, to put it mildly.
As I have indicated previously, I believe Merrick Garland is an admirable person and a well-qualified nominee. While I think there are serious legitimate concerns about his judicial philosophy (he is too deferential to the government on several important issues), I also believe he would probably be preferable to the sort of person Donald Trump would be all too likely to nominate.
For these and other reasons, people can legitimately disagree about whether it is wise for Senate Republicans to refuse to hold hearings and vote on the Garland nomination. But whatever we might think about the prudential issues involved, they have no constitutional duty to do so. And the President has no power to bypass the confirmation process if the Senate refuses to cooperate with him.
UPDATE: My co-blogger Jonathan Adler adds some additional criticisms of Diskant's argument here.
UPDATE #2: Prominent liberal political commentator and former Secretary of Labor Robert Reich has also commended Diskant's idea.