I love this legal strategy
The President appoints and the Senate confirms. If the Senate abstains, the appointment stands.
There is a fun legal theory floating around advocating one way the Obama administration could resolve the mess over Merrick Garland’s nomination to the Supreme Court. In brief, the theory says this: A few months from now, Garland could just show up at the Supreme Court building and start working.
Okay, it’s a legal theory, so it is much more complicated than that. But Garland pulling on his judicial robe and plunking himself down in Antonin Scalia’s seat without so much as a fare-thee-well from Mitch McConnell….
What we think of as the “advise and consent” process is nothing but the accretion of tradition. The GOP Senate has overturned tradition, so what is the new process? President Obama has a hand in forming that new tradition and seating a new Supreme Court Justice while the Senate abstains should be the next step.
Sounds like “Supreme Court appointment by executive order” to me.
Of course, if Obama were Trump, he’d say, “I’ll veto every bill you pass, no matter how inconsequential, until you approve my Supreme Court nominee.” And Mitch McConnell would reply, “Not a problem, Mr. President. We haven’t passed any legislation in at least six years.”
Oh I’m sure wingnuts would stage their standard freakout, but it would be pretty easy for the President to make the case that they’ve ceded their authority through inaction, sloth, stupidity, etc.
An actual link: http://www.salon.com/2016/03/31/this_amazing_supreme_court_theory_could_probably_never_happen_but_maybe_it_should/
Merci.
uh, jason, the problem is that if you go there, then you open up another door that you really REALLY don’t want to crack open.
“Judicial Review”–the power to declare laws unconstitutional–is not in the Constitution, either. Chief Justice John Marshall made it up virtually whole cloth in Marbury v. Madison and McCullough v. Maryland and made it stick. In fact, after Marshall applied it in 1802 he never did it again, and it would be IIRC at least 4-5 decades before it was actually used substantively.
“Judicial review” is therefore nothing more than an “accretion of tradition,” either. Do we really want to start going down this road for tactical advantage?
Well said Steve Newton, declaring laws unconstitutional is mentioned nowhere in the constitution and is the creation of John Marshall. A rather stupendous power grab I’m surprised it, and the trouble it causes, have endured this long. It is mere tradition. Go down that road? Much like killing off parts of the filibuster in the senate it may well happen at some point along the lines of enough is enough. And damned if it ain’t.
Refusing to advise and consent goes directly against the Constituion, so eithernway, it is just different ways of ignoring the same passage.
consent does not mean automatic agreement or else there wouldn’t be a vote.