Monday, April 11, 2016

Is the Senate's Role of Providing Advice and Consent "an Opportunity" or a "Condition Precedent?"

A couple of weeks ago I wondered whether President Obama might bring an action for declaratory relief to determine whether the Senate, by announcing its refusal to advise and consent with respect to the judge Merrick Garland nomination to the Supreme Court, has waived its right to participate in the process. I noted that under Marbury v. Madison it seems clear that judge Garland would have standing to bring such an action, although it seems highly unlikely that he would do so. I also wondered why no one was talking about a judicial route to help correct the broken advise and consent role of the Senate? 

Well, people are starting to talk about it. 

Three days ago Gregory Diskant wrote an Op-Ed in the Washington Post suggesting that if the Senate continues to sit on its hands with respect to the Garland nomination, then the President might force the issue by appointing judge Garland. Diskant envisions the President announcing a reasonable amount of time for the Senate to consider the nomination; he suggests 90 days. If the Senate fails to act within that time, suggests Diskant, the President could consider the Senate to have waived its right to participate in the process and appoint judge Garland.  This would put the burden of initiating potential litigation on the Senate.

Diskant directed us to U.S. v. Olano (1993) which reminds us that criminal defendants can waive their right to a trial. The case also discussed the distinction between a "forfeiture" and "waiver" (forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right) He states that "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."

Earlier today Ilya Somin at George Mason School of Law, recently the butt of jokes over renaming of the law school after Antonin Scalia, responded in an article at Volokh Conspiracy. Somin says there can be no waiver "because there is no duty to act on the part of the Senate." The Senate's advice and consent is a prerequisite for appointment, he says, but the Senate has no duty to act. [Somin provides a handy summary of all the arguments people have raised as to why the Senate has no duty, why they think the Senate are not scofflaws; Somin's colleague at Volokh Conspiracy, Jonathan Adler, also reviews the arguments that when McConnell says (paraphrasing) "we will not meet with or grant a hearing to judge Garland while Obama is president" the Senate has in fact acted and discharged its advice and consent role by rejecting Garland. All of these arguments, it seems to me, are appropriately directed to the Supreme Court--if only someone framed the issues and brought the matter before the Court.... Who will it be?]

It strikes me Somin, by focusing on whether the Senate has a duty to act, does not meet Diskant's argument on its terms: a criminal defendant does not have a duty to go to trial; he has the right and opportunity to do so. If a defendant elects to forego this right and opportunity (by pleading guilty) he forfeits the right. A defendant in a civil suit has the right and opportunity to a trial, but he or she can forfeit and waive that right by opting not to respond to the action. The defendant forfeits and waives the opportunity to a trial: whether he or she had a duty is not the issue.  Similarly, Diskant is suggesting that the Senate has a right and opportunity to provide advice and consent on any Supreme Court nominee. He is suggesting the Senate would forfeit and waive this opportunity if it fails to act on the nomination within 90 days.

Here is the real issue between Diskant and Somin: does the Senate have "a right and opportunity" to give advice and consent (Diskant), or is the Senate's consent a condition precedent to the President's power to appoint (Somin)?

The language of the constitution provides no guidance on how to resolve this issue.  The constitution says "The President... shall nominate, and  by and with consent of the Senate, shall appoint judges of the Supreme Court." The nomination and appointment of judges is obviously an essential function of government. The President and the Senate both have roles to play in executing this function of government. The President's role is to  nominate and appoint; the Senate's role is to provide advice and consent. But nowhere does it say whether the Senate's role, in essence, is a "right and opportunity" or whether the Senate's consent is a "condition precedent."

If the Senate's role is in the nature of "a right and opportunity," then this should be subject to waiver, and Diskant is right. If the Senate's role is "a condition precedent," then Somin and Adler are probably right. Neither of these interpretations is dictated by the language in Article 2, Section 2.  In resolving this question, the Supreme Court is likely to look at what's required to have the nomination process function smoothly, as well as the practice of the Senate for the past century. If they do that, the court might well side with Diskant.

In any case, this question seems ripe for the Supreme Court to decide. Somin provides some persuasive reasons why the President appointing judge Garland and letting the Senate sue may not be the best course [there's a lot of uncertainty in this course of action that would undermine the authority of the court].  If possible, a suit by the President seeking a declaration of rights seems preferable.

So far I'm not seeing either Garland or the President initiating such a suit, but at least we're talking about it.

Follow me on Twitter @RolandNikles 

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