Why Should We Follow The Law? Obama Encouraged To "Just Do It!"

White House petition asks Obama to seat Merrick Garland to SCOTUS without Senate approval

Sara Gonzales November 14, 2016 7:46 pm

FILE - In this April 14, 2016 file photo, Judge Merrick Garland, President Barack Obama's choice to replace the late Justice Antonin Scalia on the Supreme Court, arrives for a meeting on Capitol Hill in Washington. The Supreme Court has existed with its full complement of nine justices for close to 150 years, no matter who occupied the White House. Now some Republicans are suggesting that only a president from their political party can fill vacancies. (AP Photo/J. Scott Applewhite, File)

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A White House petition that has been signed by tens of thousands of people calls for President Obama to appoint Judge Merrick Garland to the Supreme Court judge without waiting for Senate approval.  The “We the People” petition refers to a Washington Post opinion piece that asserts Obama should bypass normal procedure and assume the Senate is waiving its right to consent.

It reads, “The Senate has waived its constitutional right to advise and consent; Obama should exercise his independent constitutional right to appoint. The Supreme Court vacancy opened during Obama’s [sic] administration, it is Obama’s [sic] responsibility and right to nominate and appoint a replacement. The Senate has a concurrent right to advise and consent, but its complete failure to schedule an up-or-down vote means it has waived that right. Obama can and should act now.”

Gregory Diskant, the author of the opinion piece referenced in the petition, writes in the Washington Post:

“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.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. 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.”

The petition currently has around 56,000 signatures and needs to reach 100,000 signatures to get a response from the White House.

It is highly unlikely that President Obama will take any action to attempt to seat Garland unilaterally. Even if the Congress recesses, thus allowing Obama to appoint Garland to a recess term, his term would end when the next Congress is seated in January, meaning that Garland would not get to participate in any decisions. Additionally, the Supreme Court has shown a willingness to check Obama’s expansive view of his own appointments power, having unanimously overruled his attempts to stack various agencies with recess appointments earlier in his term.