The Senate Already Did Their Job

Unites States Senate

With the controversy over the Senate refusing to hold hearings for Supreme Court nominee Merrick Garland, it’s not surprising that people would come out of the woodwork with every possible theory as to why the Senate is either not doing their job and/or how President Obama can ignore them and appoint Mr. Garland anyway. Not to disappoint, this past week an opinion piece ran in the Washington Post making the dubious claim that by not holding a hearing, the Senate is effectively waiving their Constitutional right of “advise and consent”.

Now, personally, I think this is quite a stretch. This is a case of a person seeing what they want to see and being willfully blind to a couple of gaping problems with their theory. With that said, I’ll let the article speak for itself. Here is the core of the argument:

From the Washington Post:

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.

While I have no reason to think that Mr. Diskant is anything other than a perfectly competent attorney, he ignores a few points that are rather obvious, even to we peasants without a law degree. To dispense with the more spurious claim, I’ll simply point out that this is not a trial, nor is it a tribunal. It is essentially an administrative process that has it’s foundation in a much higher authority than that of a procedural precedent in court proceedings. Using this as a basis to claim that the Senate has waived their Constitutional right of “advise and consent” is at best, intellectually lazy. With that said, let’s move on to the broader and more significant issue.

First, there’s no question at all about the President’s Constitutional right and obligation to appoint Justices to the court. This has not been questioned by any serious person (though I wouldn’t be surprised if some nut-job tried to make the case). Second, there is also no question that Presidential appointments to the court require the “advise and consent” of the Senate.

United States Constitution: Article 2, Section 2:

2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The problem lies in the definition of “advise and consent” and that problem is simply this:

There is a widely held belief that the Senate is somehow required to hold a hearing and/or a vote as part of the process. Worse yet, many actually believe that this is a Constitutional requirement. They believe that a failure to consider a nominee by holding a hearing or having a vote means that they have not provided “advise and consent”.

They’re wrong.

There is NO Constitutional requirement for a hearing or a vote. This is a procedural issue that would be defined by the rules of the Senate, in which there is also no requirement for a hearing or a vote. The Senate is under no obligation to consider any nominee that they choose not to (or for that matter, to take up any other issue). The process by which “advise and consent” is provided is not defined in the Constitution and as such, is left up to the Legislative Branch through its power to determine its own rules.

Article 1, Section 5:

2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

The fundamental (and flawed) assumption on which the argument relies is that the Senate has “failed to do it’s job” by not holding a hearing or a vote. Without that failure, one can not assert that they’ve waived their rights. The simple fact is that there is no specific requirement to how “advise and consent” must be provided.

A representative of the Senate could verbally advise the President that they are not going to consent to his nominee and by doing so, they have fulfilled their Constitutional obligation. This is exactly what has happened. Failing to hold a hearing is irrelevant. The Senate has clearly advised the President and has just as clearly withheld their consent.

The Senate already did their job. Case closed.

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