To summarize: there is a long-standing legal doctrine that a right not exercised is waived and the president could declare that since the senate has had, say 90 days, without acting he will appoint Garland unilaterally. Whether this is good politics is a different question. Note that this goes far beyond the Supreme Court, since there are hundreds of lower court vacancies that the senate has failed to act on.
A patently silly position. The Senate last exercised its role in advice and consent on Thursday, April 7, on a U.S. District Court judge. Before that, another judge was confirmed on April 5.
Moreover, the author attempts to confuse readers by juxtaposing the waiving of a constitutional right – say, a criminal defendant who fails to exercise any particular constitutional protection – with the waiving of a constitutional power – a direction that someone is allowed to do something. If the President decides not to repel a Red Dawn-like invasion of North Koreans, that doesn’t mean that someone else can just go an declare themselves to be commander in chief and direct that the armed forces obey them because the President has waived his power to be CiC.
We did it. And did it again. Third time’s the charm.
In short, the Founders considered a system whereby the president would nominate and appoint and the Senate would only act if they wished to veto the appointment. The Founders explicitly rejected such a system.
The Founders didn’t envision an opposition party that had no interest in governing. Sadly, short of an amendment setting deadlines for Senate disapproval and automatic confirmation otherwise granted, there is nothing that can be done.
The Founders did not envision political parties as we now know then. That is for certain.
But the Founders did base the Advise and Consent process requiring Senate confirmation on the methodology used in the Massachusetts government in which the confirming body (the state Privy Council) simply refused to vote on nominees they chose to reject.
The Founders debated various methods to confirm ambassadors and judges, weighing the pros and cons of several methods. In the end they decided that confirmation would be done by the Senate and confirmation would require some sort of positive action on the part of the Senate.
This was, in no small part, to give the minority some measure of influence to guard against extremism - something that then Senator Biden noted in the same speech that he made the comments that have been referred to as the Biden Rule.
Indeed – Aaron Burr’s decision to openly campaign against Jefferson and Adams for the Presidency in 1800 was considered boorish. And of course with Jefferson’s win, Burr, the runner-up in electoral votes, became Vice-President, which doesn’t make sense if you picture the opposing candidates as political rivals.
Burr wasn’t the runner-up; he was Jefferson’s “running mate”, to the extent that idea was established back then.
Jefferson and Burr both technically ran for president, under the original election rules in Article II, section 1, clause 3. They both got 73 electoral votes, thus both coming ahead of Adams. Since it was a tie, that threw it into the House, where Burr campaigned for the presidency. It took 36 ballots for the House to decide in favour of Jefferson.
Nonsense (respectfully). An opposition party by definition does not govern, and besides, the Founders built in numerous protections against majority rule.
I’d be more amused to see Congress claiming that it doesn’t need to submit a new law to the President because he hasn’t vetoed any laws recently so he’s waived the right.
Personally I think the founders wanted to avoid quick actions by government, especially on the part of the executive. They didn’t fear government not operating, rather they feared it running too efficiently. Personally I agree and think bills in congress should require a 2/3 majority to ensure the law was truly a good thing supported by a clear consensus of the people and states.