Here’s An Idea

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As a lawyer, I love finding solutions to cases that involve all of the following things: (a) winning, (b) being clever, and (c) pissing off my ideological adversaries, now and forever, amen. Here’s today’s trifecta, as applied to the current Supreme Court kerfuffle.

It is generally assumed that the Constitution requires the Senate to vote to confirm the President’s nominees to principal federal offices. This Essay argues, to the contrary, that when the President nominates an individual to a principal executive branch position, the Senate’s failure to act on the nomination within a reasonable period of time can and should be construed as providing the Senate’s tacit or implied advice and consent to the appointment. On this understanding, although the Senate can always withhold its constitutionally required consent by voting against a nominee, the Senate cannot withhold its consent indefinitely through the expedient of failing to vote on the nominee one way or the other. Although this proposal seems radical, and certainly would upset longstanding assumptions, the Essay argues that this reading of the Appointments Clause would not contravene the constitutional text, structure, or history. The Essay further argues that, at least under some circumstances, reading the Constitution to construe Senate inaction as implied consent to an appointment would have desirable consequences in light of deteriorating norms of Senate collegiality and of prompt action on presidential nominations.

Or as Dahlia Lithwick puts it in plain English here:

Judge Garland has been nominated by President Obama. Senate Republicans refuse to give him a hearing. After a suitable period of time—lets say by the end of September of 2016—Judge Garland should simply suit up and take the vacant seat at the court. This would entail walking into the Supreme Court on the first Monday in October, donning an extra black robe, seating himself at the bench, sipping from the mighty silver milkshake cup before him, and looking like he belongs there, in the manner of George Costanza.
Really, what could the other justices do? They aren’t going to have the marshals tackle him. He is, after all, the chief judge of the second most important court in the land, respected across the ideological spectrum. And in the absence of a Senate hearing on his nomination, one certainly might infer that the Senate has by now consented to his presence there. (If you’re the law review type, here is a very plausible argument that this is actually the case.) But more urgently, this is the kind of action—OK, “stunt”—that would draw attention to the fact that just because GOP senators want to pretend that Obama’s Supreme Court nominee is invisible, doesn’t mean that he has to play along. By my playbook, Garland could show up for work in a black robe every day in October, participate in oral arguments with a handful of incisive questions in November, and even start to write a few modest opinions in December, demonstrating how real his nomination is. By January, nobody will even remember that he never got a hearing!

Oh, please please please let this happen. It won’t but it should.

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