Can Obama get Garland on the Court without Senate confirmation?

Gregory Diskant, an accomplished New York lawyer, argues in the Washington Post that President Obama could appoint Judge Merrick Garland to the Supreme Court without the Senate having confirmed the nomination. How is this possible? Because, says Diskant, the Senate could be deemed to have waived its “advice and consent” role on a Supreme Court nomination if it “fails to act” on the nomination within a “reasonable” time.

Diskant’s argument is clever, but unpersuasive, as Ed Whelan shows. The Appointments Clause of the Constitution requires the president to secure the advice and consent of the Senate; it does not require the Senate to advise or consent. In any event, the Senate has effectively advised the president that it will not consent to Garland’s appointment.

Diskant doesn’t say what more he thinks the Senate is required to do to avoid waiving its “advice and consent” role. Would it be enough to hold a hearing and have the Judiciary Committee vote against the nomination or must the nomination go the Senate floor? Once on the floor can it be blocked by a filibuster or must there be a vote on whether to confirm?

Diskant does say how long the Senate has to do whatever he thinks is required — 90 days. This number is arbitrary. He derives it from an analysis of past precedent. However, as Whelan points out, there have been nominees who never got a vote or even a hearing.

But the fact that Obama lacks the power to place Garland on the Court without him being confirmed doesn’t rule out the possibility that Obama might try this. If he did, it would hardly be the first time Obama usurped power from the Senate.

What would likely happen if Obama acts as Diskant suggests? Diskant says the Senate would sue to remove Garland from the Court. That’s a certainty. However, if the suit dragged on into 2017 and Democrats won control of the Senate, that body might well withdraw the suit.

If the Supreme Court decided the suit, with Garland recused, the result might be a 4-4 vote. It’s possible, however, that one or more liberal Justices would balk at writing rules for how the Senate must treat judicial (and other) nominees. They might also be reluctant to undermine the public’s confidence in the Court’s legitimacy by approving of a power play as naked on the one Diskant has in mind, particularly since the Justices can be pretty confident that a new Justice will be confirmed early in 2017.

It’s possible that Chief Justice Roberts, who seems particularly sensitive to issues of judicial overreach and public perception of the Court, might refuse to permit Garland to sit. This seems unlikely, though.

It’s even possible that Garland would not accept Obama’s appointment under these circumstances, especially if it looks like the Democrats will win the White House. But this seems extremely unlikely.

In the worst case, I think the Supreme Court might write a decision that gave the Senate the opportunity to void any “waiver” by acting on Garland’s nomination. In that event, the Senate could vote Garland down or, if Hillary Clinton has been (or is about to be) elected president, confirm him on theory that her nominee will be even worse.

Given the overwhelming likelihood that Diskant’s gambit would not enable Garland to become a Justice, I doubt that Obama will decide to end his presidency on this note.

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