If the Senate doesn't act, Obama may be able to seat Judge Garland anyway

[KamaAina]

https://www.linkedin.com/pulse/senate-doesnt-act-obama-may-able-seat-judge-garland-anyway-ford

There may be a way for Obama (if he has the guts) to force the Senate’s hand to do its job to consider and vote on Merrick Garland’s appointment to the Supreme Court and if they do not, to seat Judge Garland on the Court without their action....

Thus, legally, consensus can be presumed to exist until voiced disagreement becomes evident.

A corollary is that if you disagree, the onus is on you to say so....

The Senate has a constitutional duty to “advise and consent” to Supreme Court nominations made by the President. If they do not perform that duty and register their objection to the nomination within a reasonable period of time (say, the average time it has taken in the past to consider and confirm or reject a nominee, about 90 days), then their silence on the issue can legally be considered their consent to the nomination.

Or, he could use this maneuver to seat someone he really wants but chickened out on because of the repuke obstructionists.

[haikugal]

1. Yeah...why not a GOOD candidate instead?

[pintobean]

2. I'm a French model.

Bonjour.

[CurtEastPoint]

3. I thought you wrote he'd seat JUDY Garland! LOL!

[PoliticAverse]

4. The administration recently got slapped down 9-0 on recess appointments, good luck with this. n/t

[COLGATE4]

5. It's a basic principle of law in the U.S. that your silence

cannot be deemed acceptance (unless you have otherwise agreed). I don't see where the Senate has agreed to that idea, so it probably is a non-starter.

[yellowcanine]

6. Nice Armchair Constitutional Analysis but wrong.

The nominee has to get at least a 51% positive vote in the Senate or Obama can possibly make a recess appointment if the Senate ever officially goes into recess - which is not likely to happen.

[whistler162]

9. Well the OP probably stayed at a Holiday Inn

last night so they know what they are talking about.

[WillowTree]

7. And you think this would be a good precident to set? Really?

[Yo_Mama]

8. No, not a chance, this is a powers issue. 2014 went 9-0 (anti O admin) on recess appts.

"Consent" is a positive action. It means what it says. And the Senate is presumed to be a deliberative body, which does not engage in pro-forma, but in genuine debate and argument, which means that it may take a longer or shorter period to achieve consensus.

For a court to rule that failing to say "no" is the same thing as saying "yes" would so disrupt the powers relationship on treaties and appointees that I cannot imagine ANY Supreme Court we have ever had ruling this way.

I believe that the Senate will ultimately decide on the nomination, because I think public pressure will be a factor in an election year. But I don't think that the Court would tolerate an attempt to do an end-run around this clause in the Constitution before it became grindingly evident that the Senate was out of all historical norms. And the truth is, in the past multiple candidates have been withdrawn when it became apparent that they would not be confirmed, and that the confirmation process usually does take months.

As far as I can see, right now the process is still going on, with several Judiciary committee members having met with Garland.

What I would expect is that if it became apparent that historical norms were being transgressed, the SC might revisit their NLRB ruling. Some day. Not this year.