The Corner

Law & the Courts

Revisiting the ‘Reverse Bartleby’

 Slate’s Dalia Lithwick hopes that Americans will fight an “almighty battle” to prevent Republicans from replacing RBG in the coming weeks. This being so, I am interested to know whether she still believes what she purported to believe in 2016: that, “in the absence of a Senate hearing on [a] nomination, one certainly might infer that the Senate has by now consented.”

This theory — that if a president nominates a justice and the Senate ignores the nomination, the nominee should be deemed to be seated — was described by Lithwick as “very plausible.” She even suggested that it was bolstered by “law review” research.

If Lithwick does still believe this, then it seems fairly obvious what President Trump and Mitch McConnell need to do to seat a replacement. If Lithwick doesn’t still believe it, one has to ask why she said it in the first place, and to what extent we should trust her legal analysis going forward.