"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Sunday, April 10, 2016

Can President Obama Now APPOINT Merrick Garland to the Supreme Court Due to Waiver of Advice and Consent by the Senate?

Gregory L. Diskant of Patterson Belknap Webb & Tyler, a member of the national governing board of Common Cause, a former U.S. Supreme Court clerk to then Justice Thurgood Marshall as well as a former clerk to then Judge J. Skelly Wright, U.S. Court of Appeals for the District of Columbia Circuit, and also a former Assistant United States Attorney and Chief Appellate Attorney for the Southern District of New York, has an April 8 "Opinions" posting at the Washington Post titled Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing.

In that posting we are gratified to see Diskant following the same -- we find -- legally inevitable logic that we raised at LawPundit in our March 19 posting titled President Barack Obama's Option to APPOINT a Supreme Court Justice Due to WAIVER of Advice and Consent by the Senate.

We think that top legal minds will identify these same basic arguments when they have studied the applicable Constitutional provision carefully and without any political party influence. We are in fact quite surprised that this obvious option has not been pointed to by even more legal observers, but it is perhaps enabling that someone with the legal standing of Diskant has now done so.

The "push comes to shove" question, however, is whether President Obama has the courage to take this course of action, which places all three branches of government into the Constitutional "separation of powers" limelight as adversaries, an action which could involve considerable and perhaps unnecessary political risk, especially since the present situation is working to the advantage of the Democratic Party who can continuously drum upon this subject to prospective Presidential election voters and point to the irresponsibility of the GOP, who are defying the Constitution of the United States and reducing the highest levels of the country's Judiciary to the status of political puppets beholden to behind-the-scenes personages in Congress.

Nevertheless, a clever President might float this possible course of action "unofficially" to the present eight U.S. Supreme Court Justices via appropriate people in the underground grapevine to see whether he would emerge as the winner if he now appointed Garland to the Supreme Court. If his winning were not absolutely clear in advance, then of course he can forget it, because it is not an action that he could afford to lose, because it might lead to his own impeachment. Hence, he has to know that he will win.

P.S. A Late Addtion -- Hat tip to CaryGEE who informed us that this topic had been discussed for quite some time previous to our own posting.

We then "googled" some related terms today and found that the "waiver" idea had already appeared elsewhere before our own March posting. See e.g. Scott H. Greenfield's Simple Justice: A Criminal Defense Blog and the postings: