Bench Memos

Law & the Courts

Re: Gobsmackingly Stupid Op-Ed

Alan B. Morrison, the distinguished liberal public-interest lawyer and George Washington law school associate dean, has authorized me to publish this letter (emphasis added) that he sent to the Washington Post in response to Gregory L. Diskant’s astounding suggestion that President Obama could appoint Merrick Garland to the Supreme Court without the Senate’s ever having confirmed the Garland nomination:

My question is, did the editors show the piece to anyone with a passing familiarity with constitutional law? If they had, here are some questions that needed to be addressed: 

What case allows one branch of government (the Senate here) to waive a constitutional protection (advice and consent to presidential nominations) designed to protect all of us from presidential excesses? How does the average time for Supreme Court confirmations become a constitutional time deadline? What case gives the Senate legal standing to sue the president over the legality of his appointments and how might such a case get decided by the Supreme Court in a reasonable time frame? And this assumes that President Obama would be willing to infuriate the Senate by this maneuver when he expects that Chief Judge Merrick Garland will be confirmed no later than the lame duck session.

Another ardent liberal, the Atlantic’s Garrett Epps, observes that Diskant’s argument “does not simply torture the Constitution’s text and history, it waterboards it.” And other progressives have weighed in with similarly blunt assessments: “this argument is dumb” and “very bad.”

The premise of Diskant’s argument—that the Appointments Clause is somehow ambiguous about the president’s need to obtain Senate confirmation of a nominee before he can appoint that nominee—contradicts the text of the clause, the originalist evidence of its meaning, and the uniform and settled practice of the Senate and the president from the beginning. (And, yes, there have been countless nominations before Garland’s that died from simple inaction.)

Morrison’s lead question answers itself. The Washington Post has beclowned itself by publishing Diskant’s op-ed. 

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