Bench Memos

Law & the Courts

Gobsmackingly Stupid Op-Ed

Gregory L. Diskant’s Washington Post op-ed on the Scalia vacancy battle reminds me once again that there are indeed distinct levels of gobsmacking stupidity.

In his op-ed, Diskant—who is a lawyer with distinguished credentials—contends that the Senate can be deemed to have waived its “advice and consent” role on a Supreme Court nomination if it “fails to act” on the nomination within a “reasonable” time—and that President Obama could therefore proceed to appoint Merrick Garland to the Supreme Court without the Senate’s ever having confirmed the Garland nomination . (Or, to be more precise, Diskant, in an apparent effort to preserve his professional credibility, claims that “it is possible to read” the Appointments Clause that way.)

When I ran across his op-ed on Friday evening, I was amazed that the Post would air such a patently stupid argument. Little did I imagine that it would not only publish Diskant’s piece in its Sunday print edition but also feature it front and center, with a large-font headline, on its main op-ed page.

Let’s briefly review the basics of what’s wrong with Diskant’s argument:

1. The Appointments Clause (Art. II, section 2, cl. 2) of the Constitution provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

The Appointments Clause thus restricts the president’s power to appoint officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination.

2. The Appointments Clause clearly implies a power on the part of the Senate to give advice on and, if it chooses to do so, to consent to a nomination, but it says nothing about how the Senate should go about exercising that power. The text of the Constitution thus leaves the Senate free to exercise that power however it sees fit. 

3. Throughout American history, the Senate has frequently—surely, thousands of times—exercised its power over nominations by declining to act on them. (The same Appointments Clause applies equally to Supreme Court nominations and other nominations, so any constitutional argument about what that clause means must apply to all nominations.) That’s been true of judicial nominations generally and also of Supreme Court nominations. As law professor Larry Tribe once put it, “The Senate has ways of blocking Supreme Court nominations other than by straightforward rejection in a confirmation vote.” To illustrate the point, he cited an instance in which the Senate “killed” a nomination “by simply refusing to act upon it.”

4. Thus, the factual premise of Diskant’s waiver argument—that the Senate, by refusing to process the Garland nomination, is “simply fail[ing] to perform its constitutional duty”—is flatly wrong. The Senate is performing its constitutional duty in the manner that it sees fit.

5. Diskant’s waiver argument is also manifestly wrong as a legal matter. Diskant is essentially arguing that the Appointments Clause gives the Senate a veto power that it must exercise affirmatively in order not to waive its ability to block a nominee. Thus, he argues that the Senate does not have the “right to pocket veto the president’s nominations.” But the Framers specifically rejected the veto model (see point 3 here), and the lack of any time frame on the Senate’s power to act simply confirms the broader point that the Constitution leaves the Senate free to act as it chooses.

(I’m not going to bother with Diskant’s further follies, including his extrapolation of a “reasonable” time limit on Senate action and his contemplation of a Supreme Court ruling on whether President Obama’s purported appointment-without-confirmation of Garland would be effective.)

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