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.