President Obama Can’t Force the Senate to ‘Waive’ Its Advice and Consent

Democrats are rightly furious that Senate Republicans stole a Supreme Court nominee from President Obama. With almost a year left in Obama’s administration, senators like Mitch McConnell made bogus, disingenuous arguments about how the American people deserve to select the next Supreme Court justice. Never mind that the president’s term lasts four years, and Justice Scalia’s death in February—February!—fell squarely within that time frame. When it seemed like that fake argument wasn’t working, Republicans made the false claim that no Supreme Court justice had ever been appointed in the last year of a president’s term, as though that’s some sacrosanct neutral zone of nominations. (In fact, it’s happened several times.) Finally, Republicans just stopped giving any reasons—even bogus, made-up ones—and just refused to say anything or do anything about Judge Merrick Garland’s nomination.

What little semblance of intellectual honesty Republicans’ claims had (which was approximately zero) began to unravel last month when it looked like Hillary Clinton was going to win the presidential election. Senators Ted Cruz and John McCain suggested they could stall confirming a new justice for the entirety of a putative Hillary presidency, laying bare the paper-thin and utterly fantastical claim that any of this was about lofty ideals of including the American people in the decision. It was bare politics; they didn’t want a Democratic appointee, pure and simple, and Republicans were preparing for full tantrum mode.

Now that Trump is the president-elect, we’re hearing arguments on the Left that are just as disingenuous. I’ve been seeing the following going around: Obama can give the Senate a 30-day ultimatum, and he’ll construe the Senate’s failure to act on Garland’s nomination as a “waiver” of their advice and consent duties, then appoint Garland himself.

As nice as that might be, it lacks support in the Constitution.

Article II, section 2 of the Constitution provides: “[The president] 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 … judges of the Supreme Court …”

The Appointment Power thus consists of two parts: first, the president nominates a judge of the Supreme Court. Once he nominates a judge, he appoints that person, but only by and with the advice and consent of the Senate. In other words, a precondition to a judge’s appointment to the Supreme Court is the advice and consent of the Senate. Absent from that description of the mechanics of Supreme Court appointments is any mention of a 30-day period (or any time period; 30 days seems to be arbitrary) or any provision by which the president can bypass the Senate’s advice and consent. And it’s not for lack of the Founders’ imaginations. One paragraph later, we’re told, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Clearly, the Founders knew how to build some kind of waiver into the system. The fact that they didn’t create the type of waiver the current proponents imagine most likely means the Founders didn’t want there to be one.

Sometimes, I’ve seen citations to a case called United States v. Olano (1993) 507 U.S. 725 as proof that the Senate can “waive” its advice and consent authority. Olano, however, has nothing to do with the Appointment Power. That case involves the difference between waiver and forfeiture of a right in the context of a criminal trial. For one thing, we’re not in a criminal trial. For another, it’s not clear that the Senate’s advice and consent power is a right. Nor is it clear that the power is a duty, given that the advice and consent aren’t required. The Senate’s advice and consent appears only to be a prerequisite for a Supreme Court justice’s appointment, and it appears to be binary. Either the justice has it, or she doesn’t.

The Washington Post op-ed, linked above, is authored by a former clerk to Justice Thurgood Marshall, so someone who should know what he’s talking about. The op-ed seems to be an attempt to create some kind of functioning government in this time when government isn’t functioning at all. Unfortunately, government gridlock is something the Founders expected, but thought would be naturally resolved through the political process. Writing about nominations to executive departments in Federalist No. 76, Alexander Hamilton suggests that public scolding would be a sufficient check during the nomination process: “The censure of rejecting a good [nominee] would lie entirely at the door of the Senate; aggravated by the consideration of their having counteracted the good intentions of the Executive. If an ill appointment should be made, the Executive for nominating, and the Senate for approving, would participate, though in different degrees, in the opprobrium and disgrace.” Hamilton implies that voters (or in the case of senators in the early years of the country, state legislatures) would hold either the president or the Senate accountable for their decisions. As a practical matter, however, voters today seem less and less likely to hold their representatives to account. Unfortunately, there’s no good way to address that within the framework of the existing Constitution.

In the new, Trumpian world, the Left can’t succumb to the same intellectual dishonesty and ideological sloppiness we’ve seen from the Right. Peddling half-cocked schemes to get our way, like the idea that the president can “waive” the Senate’s advice and consent, is beneath us. Furthermore, don’t forget that any authority you grant to one president you necessarily grant to future presidents. Just imagine if Trump could utilize this “waiver” scheme to get his own nominees through the Senate.