Michael Gaynor
Former SCOTUS clerks Wendy Long v. Gregory Diskant disagree about the Senate's advice and consent power
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By Michael Gaynor
April 13, 2016

Long is right: the Senate does not have a constitutional duty to vote on a presidential nomination, much less to vote by a deadline fixed by the President.

It's a battle of former Supreme Court law clerks: constitutional conservative versus judicial activist.

Wendy E. Long clerked for Justice Clarence Thomas and later served as counsel for the Judicial Confirmation Network (renamed the Judicial Crisis Network). Long is particularly familiar with the judicial confirmation process. She supported the confirmations of Chief Justice John Roberts and Justice Samuel Alito and opposed the confirmations of Justices Sonya Sotomayor and Elena Kagan.

Gregory L. Diskant clerked for Justice Thomas's predecessor, the late Justice Thurgood Marshall. He is a senior partner with Patterson Belknap Webb & Tyler and a Common Cause national governing board member. He has a plan to "force the Senate to do its job – providing its advice and consent on a timely basis so that our government can function."

On April 8, 2016, a Diskant op ed lamenting the current state of the judicial confirmation process and presenting his plan appeared in the Washington Post (www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html).

Diskant: "Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama's nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate's refusal to perform its constitutional duty." On April 10, 2016, Long simply tweeted (https://twitter.com/wendylongny): "Don't look now @SenSchumer but the Senate has done its job very efficiently. Under Article II, no consent. Done."

Has the Senate "refus[ed] to perform its constitutional duty" or "done its job very efficiently"?

That depends upon what that "duty" or "job" is.

Long is right: the Senate does not have a constitutional duty to vote on any presidential nomination, much less to vote by a deadline fixed by the President.

Additionally, the courts do not decide political questions and do not want to be asked to determine whether such a deadline set by the President was reasonable or unreasonable.

The Senate was not created to rubber stamp presidential appointments. It is empowered to allow or block any presidential appointment in its sole discretion.

The Constitution of the United States of America Analysis and Interpretation, prepared by the Library of Congress's Legislative Reference Service under the editorship of Edward S. Corwin in 1953, explains the appointment process as follows (p. 453):

"The Constitution appears to distinguish three stages in appointments by the President with the advice and consent of the senate. The first is the 'nomination' of the candidate by the President alone; the second is the assent of the Senate to the candidate's 'appointment'; and the third is the final appointment and commissioning of the appointee, by the President."

The President alone nominates and the Senate must assent if there is to be appointment and commissioning.

The Senate has the power to attach conditions to its approval of a treaty, but it has no power to attach conditions to its approval of an appointment.

Senate consent is not complete until the Senate passes a resolution notifying the President that it consented to an appointment and then it apparently is final. In 1931, after consenting to certain Federal Power commission nominations, the Senate invoked a long-standing rule permitting a motion to reconsider a resolution confirming a nomination within "the next two days of actual executive session of the Senate" and the recall of the notification to the president of the confirmation. The nominees already having been sworn in, President Hoover rejected the Senate's claim that it could revoke its consent. The senate nevertheless tried to do and instructed the District Attorney of the District of Columbia to institute quo warranto proceedings. Eventually, in United States v. Smith, 286 U.s. 6 (1932), the Supreme Court overruled the proceedings on the ground that the Senate had never before attempted to apply its rule in the case of an appointee who had already been installed in office on the faith of the Senate's initial consent and notification to the President.

Diskant argues that the Constitution may be read "to deny the Senate the right to pocket veto the president's nominations."

If the president fails to sign a bill within ten days (Sundays excepted) after it is presented to him, it becomes law without his signature unless "Congress by their Adjournment prevent its Return, in which Case it shall not be a Law."

Diskant: "Note that the president has two powers: the power to 'nominate' and the separate power to 'appoint.' In between the nomination and the appointment, the president must seek the 'Advice and Consent of the Senate.' What does that mean, and what happens when the Senate does nothing?"

It simply means that the Senate is not assenting and therefore the nominee cannot be appointed and commissioned unless and until the Senate does assent.

That's checks and balances and politics.

Diskant would read a new Senate duty into the Constitution.

Diskant:

"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."

Diskant has a plan to create what he wishfully calls "a healthy dispute between the president and the Senate about the meaning of the Constitution" and insists "should not be viewed as a constitutional crisis."

Diskant:

"The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland's nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court."

Where in the Constitution is the President empowered to set a deadline for the Senate?

Nowhere.

The Constitution requires the President to sign or not sign a bill passed by Congress, but it.does not require a Senate vote on any presidential nomination, much less require a vote within a specified number of days.

Instead the Constitution requires that the Senate assent or consent in order for there to be an appointment. Unless the Senate has affirmatively assented or consented, it has not assented or consented. Period. The Senate has no power to nominate, but it has full power to withhold consent by not assenting.

See www.merriam-webster.com/dictionary/assent: "assent, consent, accede, acquiesce, agree, subscribe mean to concur with what has been proposed. assent implies an act involving the understanding or judgment and applies to propositions or opinions assented to the proposal>. consent involves the will or feelings and indicates compliance with what is requested or desired consented to their daughter's going>...."

Affirmative action by the Senate is a condition precedent to appointment, and treating inaction as a waiver is change that would require a constitutional amendment to be properly effected.


© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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