Why Waiver Won’t Work

My bad.  When I argued that the Senate had a constitutional duty to provide “advice and consent” on the president’s Supreme Court nomination, but that there was no enforcement mechanism to compel it to do so, I blew off the notion that the failure to perform this duty could constitute a waiver.  And yet, Gregory Diskant, a senior partner at Patterson Belknap and former clerk to Justice Thurgood Marshall, argues exactly that in the Washington Post.

If you took the view that the Senate’s failure to act could constitute a waiver, then you, too, could be a senior partner at a major law firm. You would still be wrong, but well paid, and given the opportunity to publish sentences like this:

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations.

Glories in its ambiguities? Pretty darned poetic, but what he’s probably trying to say is that the vagaries of the Constitution’s language should be read with sufficient flexibility to address unforeseen problems and provide answers. This is the “living Constitution” view, that it’s meant to be interpreted, and re-interpreted, by each generation in light of its priorities, concerns, experiences and sensibilities.  It’s the opposite of the textualist and/or originalist view. 

Regardless of which view you favor, which is almost invariably a product of your preferred outcomes, to suggest that vagueness is a constitutional “glory” is disturbing.  It’s hard enough to rely on the Constitution to provide stability for the rights it purports to protect without making meaninglessness a primary virtue.  And to compound that with the suggestion that “it is possible” is the “space aliens” argument. Possible? Sure. Just as space aliens are possible, but we still can’t bank on them.

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

At this point, Diskant agrees with my point, that advice and consent is a “constitutional duty.” The key word there is “duty.”  Duty means it has an obligation to act, and that failure to perform that obligation is an abrogation of its duty.  It’s like jury duty. You don’t get a trophy for performing it, but tell the judge that you’re not in the mood and he’s not going to be nice to you. It’s a duty.

What about voting?  Well, that’s a “responsibility” of a citizen, but it’s not a duty. Don’t vote and there will be no death squad knocking at your door. You may have a right to do so, but you have no duty. It’s your choice.  Jury duty (see, that word again), no choice.

Then Diskant gets all tricky on us:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

See what he did there?  It went from a “constitutional duty” to “its right to provide advice and consent.”  A duty is different than a right.  There’s nothing controversial about the contention that a right can be waived. But Diskant leaps over the chasm of this being a constitutional duty rather than a right. Those Biglaw guys are very sneaky.

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.

If this was a right, then this sentence would make abundant sense.  The president has a duty (note that the clause says “shall,” not “may,” making it a requirement for the president to do so) to nominate and, upon confirmation of the Senate, appoint a Supreme Court nominee. But does that make the Senate’s role, “and by and with the Advice and Consent of the Senate,” volitional? Is that the Constitution’s way of saying, “you can advise and consent if you feel like it,” or does the Constitution make this a duty of the Senate?

The irony here is that the Senate’s contention, that it’s under no duty to consider the president’s clearly mandated nomination, would take what would otherwise clearly be a duty and convert it into a right.  In other words, if the Senate’s refusal to even consider a nominee is based on a reasonable interpretation of the Constitution, then it would be converting its duty into a right, and if it’s a right, then it would be subject to waiver analysis.

This view, that the Senate has no obligation to act, whether up, down or sideways, but to act, defies the mandatory nature of the clause. The president shall nominate and appoint, and the Senate is given an obligation to perform its duty in the scheme of the president’s performance of his duty.  If anything, the gap is in the Founders’ assumption that the Senate would do its job rather than game the nomination in the hope that they will like the next person’s pick better.

How can I be so laissez faire about all this? Aside from having no love for Merrick Garland, who makes Sam Alito seem open-minded, I plan to vote for the candidate who adopts the campaign slogan, “I’m the least reprehensible.”  In other words, I have no horse in this race, despite my deep concern for the outcome.  A pox on everyone.

What is more disconcerting is that mechanisms that exist to assure the functioning of government are being undermined as gamesmanship reaches untenable levels. We’ve had bad presidents, bad justices, bad senators before, and we survived them. Sure, we took some hits along the way, but that’s the nature of government.  If, however, we accept the premise that government tying itself into knots, partisan paralysis, is an answer to anything, then the experiment fails. Many of you may see this as a good thing, but you people scare me. Remember, the alternative to bad can be worse.


13 thoughts on “Why Waiver Won’t Work

  1. Richard G. Kopf


    The Senate Judiciary Committee members could as easily argue that the vagaries of the Constitution give them the “right” of “advice and consent” through the Senate equivalent of a “pocket veto.” Ludicrous, sure. But no more so than the silly “waiver” argument.

    All the best.


    1. SHG Post author

      Absolutely. By trying to spin a duty into a right, it opens the door to all manner of mischief. At least the good news is that we can all agree that governmental entities, like the Senate, have no rights. Rights belong to the People, whereas the government has only duties and the specific authority given it by the Constitution.

  2. davep

    If the senate can waive this right, doesn’t that mean the senate’s “advice and consent” is optional (not a requirement of the nomination)?

  3. Ray Lee

    The appointments clause does not provide a right or impose a duty on the Senate. Conveniently located in Article II (addressing the powers and responsibilities of the executive), the language expressly addresses the President’s power and duty: “he shall nominate, and by and with the advice and consent of the Senate, shall appoint” judges of the Supreme Court. The “advice and consent of the Senate” is a Constitutionally required precondition to the President having the power to appoint a Supreme Court judge vice merely nominate as President Obama has already done with Judge Garland.

    That is not to say that the Senate does not have responsibilities in this situation, it is to say that those responsibilities are not derived from the language of the appointments clause. Moreover, Mr. Diskant’s suggestion that the President (any president) has the right to assign a deadline after which the President will deem waiver is, as Judge Kopf noted, silly. Whether, and if so how and/or when, the Senate provides consent is strictly within the purview of the Senate. Without that consent, however, the President simply does not have the Constitutional power to appoint a judge of the Supreme Court.

      1. Mitchell Brown

        Just a citizen here, Ok, I’m trying, hard, to understand what’s happening here with the intransigence of the Senate, and the powers of the Executive: the Senate’s Advise and Consent role is, in your words, volitional if not acted upon, thus they can be waived…but only by them. If they don’t expressly waive their right to move along the nomination the only recourse is, what? That the president appoint someone else?

        If the president choose another nominee the Senate feels unworthy, the works are still at a standstill, yes? The status quo holds.

        If there is no timeline, the volitional right of the Senate to Advise and Consent is unlimited, no? That seems a rather nice right to have (although, is it true, the Senate doesn’t have any rights? Now what?) The Founding Fathers may have assumed the Senate would do its duty (is this Advice and Consent thing a right, or a duty? Sorry, I’m not a lawyer, or even all that bright) and it seems their assumption was wrong. Now what? Are we stuck? Have we finally, after 226 years, discovered the fatal flaw in the Constitution?

        It would seem to me, Mr. Diksant’s proposed “solution” is for the president to break the logjam by assuming the Senate has waived its “right” and to then put the ball in the court’s…erm, court. It would be for the court to decide how to constitutionally force the Senate to fulfill its duty.

        Am I reading this at all correctly?

        Thanks, and great blog.

        1. SHG Post author

          …the Senate’s Advise and Consent role is, in your words, volitional if not acted upon, thus they can be waived…but only by them.

          Unfortunately, you went astray right off the top. Not what I said. Not what I meant. Not the case.

          But if the president wants to test the authority (not right, but authority) of the Senate to ignore his nomination, then his move would be to go to court to seek an order compelling the Senate to act upon his nomination. What he cannot do is move forward on his own.

          And just so you know, I’m a citizen too.

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