An article in Slate that says Garland should just assume “silence gives consent”, and take his place at SCOTUS.
It references this Yale law review essay which makes the argument at a level I’m unable to fully appreciate:
Not that I expect it to happen, but what would happen if it did?
Worst case, the president arranges for enough members of congress to be arrested on various charges so he can prevent them from forming a quorum, then does whatever he likes.
At present it is actually somehow difficult to think of that as a “worst case.”
I would hope that the Chief Justice would have him removed from the building.
It’s not tacit approval, though, is it? Everyone knows what’s going on. Waltzing in and saying “Oh, well, I didn’t know you didn’t want me here.” would be the height of nitpickery and pedantery.
Although, it is SCOTUS…
The essay seems to be saying that a Justice can be seated without the consent of the Senate. That’s interesting - does he or she need to be nominated by the President?
Regards,
Shodan
Thinking about it more, I guess it could be like with the stereotypical wedding vows where people are invited to speak up if they know a reason it should not take place. If the law said something like, “Absent formal disagreement, the nomination is accepted”, rather than making an actual requirement of assent, then this could work.
Shodan’s point is a good one.
I think I’ll just show up and starting writing opinions. After all, if Obama didn’t want me there, he would have said so, and if the Senate didn’t want me there, likewise.
How’s that been working out for you around here? 
Fortunately, the selection of Supreme Court justices is regulated by the Constitution, not by Yale Law Review essays.
Sure, if the “case” in question is just Garland showing up at the Supreme Court building. I was addressing the rather radical shift in the balance of power suggested by the idea that congress’s silence implies consent for the president to act. That’d be handing the executive branch quite the incentive and, well… slopes be slippery, yo.
That’s a joke, I say that’s a joke son. I keep pitchin em and you keep missin em. Now cut that out boy, or I’ll spank you where the feathers are thinnest.
It seems like trying to respond to absurdity with more absurdity.
Well, not really. The article argues that consent is implied if the Senate refuses to vote on the nomination. The Constitution allows the Senate to set its own rules, and is silent on whether affirmative consent is required. Tacit consent is a well-established principle in other contexts; tacit nomination obviously is not.
Obviously, this is not the interpretation that custom and tradition support, but that is not to say that it’s incorrect. It’s just as reasonable a reading as the generally accepted-to-date requirement that the Senate affirmatively consent.
Now, the idea that Garland should just show up, as suggested in the Slate piece, is silly. But I don’t see why the administration couldn’t seek a writ requiring that Garland be seated.
Next time we are in a mood to amend the constitution, I would like something like the following added:
Nomination by the president that are normally confirmed by the senate must be acted on within 90 calendar days with one of the following: Confirm, deny, or delay decision for up to 90 more days. If the senate does not do any of those within 90 days, the individual gets confirmed.
If I understand correctly, this would make it so the senate can’t just ignore nominations to keep the president from doing his jobs, but could still reject anyone with less than 50% support - or maybe 40% if filibusters can stop the confirmation process.
Would this give too much power to the president?
(post shortened)
It appears that the Yale Law Journal article hopes to convince others that U.S. Senate confirmation is not needed for Presidential appointments. It appears that the writer(s) argues for a stronger Executive Branch. I believe it’s argument ignores the fact that U.S. Senators are also elected by the people. In short, if the President doesn’t like the action(s) of the U.S. Senate - he should simply ignore its existence and do what ever he wishes.
*This is not necessarily to endorse the strongest forms of the “unitary executive” argument, nor is it necessarily to say that the Senate should play no role in senior executive appointments (even if that were a constitutional (option). It is simply to say that in this particular context—appointment of the most senior officials in the executive branch—the case for strong presidential authority is at its apex. The Senate does play an important checking role, even in the appointments context, and could continue to play this role by affirmatively voting down unacceptable nominees within a reasonable time (and taking the political heat for doing so). Yet it is plausible—and, in my view, probable—that the ability of a minority of senators to block senior executive branch appointments without the transparency associated with a formal confirmation vote shifts too much power away from the president.
Of course, this claim is virtually impossible to prove: it involves both contestable normative propositions regarding the appropriate balance of power between the President and the Senate and unproven (and perhaps unprovable) empirical conjectures about the probable consequences of different institutional arrangements. I do not attempt, in this Essay, to marshal all the evidence and arguments that might be needed to convince a reader skeptical of my pragmatic case for recognizing a greater power in the President to appoint senior officers without a formal confirmation vote. Rather, this Essay is directed principally at readers who are sympathetic to the pragmatic arguments sketched above, but who believe that the Constitution requires an affirmative Senate confirmation vote for senior appointments. My goal in Part II is to convince such readers that this latter view is not correct*.
Unfortunately, this would be litigated up to the SCOTUS where they’ll probably deadlock 4-4 and get nothing done.
But in the worry about giving the president too much power, how about the status quo giving the Senate too much power? The Founding Fathers probably didn’t envision an obstructionist Senate that refused to even act on the nomination, ignoring it for however long it takes them to get a GOP president. Dem pres. or GOP pres., I am absolutely against the action of not holding hearings or a vote on a nomination. Where the Constitution doesn’t specifically forbid it, I’m fine if any side says “You’ve had enough time to act on the nomination, since you didn’t, and didn’t reject him, he’s a SCOTUS justice now”.
The Constitution is also silent on whether affirmative nomination is required. Therefore, unless Obama says otherwise, Bricker is a Justice of the Supreme Court.
Tacit consent to a Supreme Court nomination is not well-established - there is no indication of it in the Constitution. If someone can make up the idea of tacit consent for the Senate without any Constitutional justification, the idea of tacit nomination needs no more justification.
Why would they need a writ? If they don’t need the consent of the Senate, why would they need consent from anyone else?
Regards,
Shodan
Or, it makes the (reasonable) assumption that the elected representatives of the people are expected to do their job. There is a clear mandate in the Constitution that they deliberate the President’s selection. They are choosing to ignore this mandate instead of fulfilling the requirements of their office.
You’re arguing that we’re empowering the Executive Branch by allowing him to bypass the Legislature when they refuse to move forward on a reasonable schedule. But, just as equally, we’re empowering the Legislature if we say that they can refrain from doing their job whenever it suits them. There’s no case where one side isn’t strengthened by the outcome.
So the question purely becomes what makes the most sense from a reading of the Constitution. Now, granted, the writers didn’t expect this sort of outcome, so you could say that there’s nothing to look at in terms of determining their intent. But since they didn’t expect this sort of thing to ever happen, you could argue that their “intent” was that the Legislature would deliberate in a reasonable amount of time in all cases. Delaying wasn’t a check to power that was written in.
Well, “consent of the Senate” could mean “If you don’t want Garland to be on the Supreme Court, then hold a vote to say that you don’t consent for him to be on the Supreme Court. If you hold that vote and don’t confirm him, then he’s not on the Supreme Court. If you don’t hold a vote to tell the President that you don’t consent, then you must have consented.”
Obviously that’s not the way things have been done for the last 200 years. For our system to work the various government bodies have to work together. When the previous understandings of how things are supposed to work break down then new norms get established.
This is how the republic degrades, when emergency and extraordinary powers become the only way to accomplish the everyday responsibilities of government.
If Garland would make a terrible supreme court justice, then the Senate can get together and tell Obama to stuff it. If he would make a good justice, then they should confirm him. Refusing to hold a vote on the matter is unprecedented. And just because Joe Biden once said something stupid that doesn’t mean you should follow his stupid ideas. Orrin Hatch said that if Obama nominated Garland that would be acceptable, but Obama wouldn’t do that, so there would be no nomination. Then Obama nominated Garland. Follow the Hatch rule! Or, if Hatch was an idiot for saying that, don’t follow the Hatch rule.
The fact is, it’s ridiculous for the Republicans to refuse to vote on Garland’s nomination. It’s a fucking disgrace. They should be ashamed of themselves. But as the triumph of Trump shows, Republicans are learning to do without shame.