Thursday, April 14, 2016

Much Ado About "Confirmation by Proclamation"

      It’s not enough that partisan Republicans are denouncing President Obama for trampling on the Constitution by, for example, exercising discretion on enforcing federal immigration laws. Now, a conservative website is suggesting with no evidence whatsoever that the White House may be behind the widely criticized suggestion that the president could install federal judge Merrick Garland on the Supreme Court without any action by the Senate.
      Gregory Diskant, a partner with the Wall Street law firm Patterson Belknap Webb and Tyler, put forth the idea in an op-ed published last week [April 8] in The Washington Post. The op-ed apparently was “the most [un]popular” article on the Post’s website over the weekend, producing “thousands of outraged comments,” according to LawNewz columnist Rachel Stockman.
      The conservative web site Breitbart followed with an equally critical story the next day [April 11], but reporter Ken Klukowski added the suggestion that Diskant might have been acting in concert with the White House. “[T]here is a serious possibility,” Klukowski wrote, “that he is floating a trial balloon for the White House, gauging the public’s willingness to accept such a fundamental change in the Constitution’s separation of powers and system of checks and balances.”
      Not since Shakespeare has there been more ado about so little. Diskant appears to be only the second person count ’em, two to raise in print the possibility of a unilateral presidential appointment to the Supreme Court. Richard Primus, a University of Michigan law professor, first broached the idea in an article in Politico [March 29]. “You could argue” that the president could bypass the Senate that way, Primus wrote. But a columnist for the Detroit News wrote later [April 13] that Primus “doubts” that Obama would do so.
      Ironically, Obama could have installed Garland on the Supreme Court in February by exercising his undoubted power to fill the vacancy while the Senate was in recess. Garland could have taken his seat and helped avert any 4-4 ties in the cases to be argued in February, March, and April. But Obama chose not to act even though Senate Republican Leader Mitch McConnell had already announced the plan to deny a hearing for whomever Obama might nominate.
      President Dwight Eisenhower twice used the recess appointment power to fill Supreme Court vacancies: Earl Warren in 1953 and William J. Brennan Jr. in 1956. The recess appointments were uncontroversial, and both Warren and Brennan went on to win Senate confirmation for full terms by voice votes.
      That was then, this is now. In his article, Diskant aptly suggested that the Senate Republicans’ refusal to consider Garland’s nomination is evidence of a “broken” system. He then went one step further to argue that Obama could treat the Senate’s failure to act a waiver of its “advice and consent” power under the Constitution and proceed to exercise his power to “appoint” Garland on his own.
      From available evidence, Diskant appears to have offered his suggestion of a unilateral presidential appointment for himself and no one else. He was identified as a member of the national board of the citizens’ advocacy group Common Cause, but the group’s position is to urge the Senate to follow normal procedure and old a hearing on Garland’s nomination.
      Diskant also identified himself as law clerk to the late justice Thurgood Marshall in the 1975 term, but he cited nothing in Marshall’s writings or any other Supreme Court opinion as authority for his view. He also claimed that there are historical precedents for such a unilateral presidential appointment, but cited no specific example.
      In his article, Primus imagined the possibility of a unilateral presidential appointment only if the impasse continued into the term of the next president. “At some point,” Primus wrote, “someone in the White House counsel’s office will notice that the Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee.” Primus was law clerk to Justice Ruth Bader Ginsburg, but he too cited no Supreme Court authority for his suggestion.
      Diskant’s op-ed carried this headline in the online version: “Obama can appoint Merrick Garland to Supreme Court if the Senate does nothing.” Three days later, the Post’s website carried a reply by Case Western Reserve law professor Jonathan Adler under the headline, “No, President Obama CANNOT appoint Merrick Garland to the Supreme Court if the Senate does nothing.”
      Adler noted that Diskant’s suggestion had been criticized from the right by National Review commentator Ed Whelan (“gobsmacking stupidity”) and from the left by Center for American Progress legal affairs writer Ian Millhiser (“dumb”). Diskant’s argument, Adler concluded, “is extremely hard to take seriously.”
      Even so, Garrett Epps, columnist for, took the proposal seriously enough to treat it in a critical column [April 14] and attribute the idea to “a handful of [unnamed] progressives.” Epps, a friend, college classmate, and respected Supreme Court expert, thus feeds the suggestion that mischief may well be afoot.
      For better or worse, there is not. As far as the public record shows, the only people espousing the “progressive argument” for what Epps calls “confirmation by proclamation” are one law professor and one New York lawyer, neither with any evident ties to the White House. Whatever Republicans may think Obama has done to exceed his constitutional powers, there appears to no plans for a presidential putsch at the Supreme Court. Time to take a breath and relax.

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