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“Force The Senate To Do Its Job”: Obama Can Appoint Merrick Garland To The Supreme Court If The Senate Does Nothing

On Nov. 12, 1975, while I was serving as a clerk to Supreme Court Justice Thurgood Marshall, Justice William O. Douglas resigned. On Nov. 28, President Gerald R. Ford nominated John Paul Stevens for the vacant seat. Nineteen days after receiving the nomination, the Senate voted 98 to 0 to confirm the president’s choice. Two days later, I had the pleasure of seeing Ford present Stevens to the court for his swearing-in. The business of the court continued unabated. There were no 4-to-4 decisions that term.

Today, the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeships and executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty.

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. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

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.

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.’ ”

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.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.


By: Gregory L. Diskant, Senior Partner at the law firm of Patterson Belknap Webb & Tyler, Member of the National Governing Board of Common Cause; Opinion Pages, The Washington Post, April8, 2016

April 10, 2016 Posted by | Merrick Garland, Senate Republicans, U. S. Supreme Court Nominees | , , , , , , | 4 Comments

“The Senate Comity Brigade Was Wrong”: Democratic Activists Urging Filibuster Reform For Presidential Appointments Were Right

I wrote a few days ago about how the Supreme Court’s decision to bar recess appointments made with less than a 10-day break in Senate proceedings increases the importance of controlling Congress.

But it also proves again that Democratic activists urging filibuster reform for Presidential appointments were right, and the status-quo-ante comity-obsessed Senators were wrong.

Now the Democrats who supported changing the rules are rightly taking plaudits for their success:

Democrats say the decision Thursday to rebuke Obama’s 2012 appointments to the National Labor Relations Board has made their change to Senate rules seem remarkably prescient. That change made it easier for the Senate to confirm Obama’s nominees, transforming recess appointments — a tactic to get around the chamber’s hurdles — into something of a relic.

That shift has already allowed Senate Democrats to squeeze through several nominees who might have been defeated under the old framework.

“Clearly this president has faced more opposition for even routine appointments, let alone important lifetime appointments like the judiciary. I’m sorry we had to change the rules and it’s created some pain in our Senate that’s still there,” said Senate Majority Whip Dick Durbin (D-Ill.). “But there had to be a way for this president to lead.”

The language used by Durbin here is still odd. It has “created some pain” in “our” Senate? Too often, the language used by Senators to describe the upper chamber is reminiscent of a private drinking club or children’s clubhouse. It isn’t. Whatever advantage there might have been in the past to friendly interactions between Senators across party lines to accomplish national goals has long been erased by hardline partisanship.

That’s largely because movement conservatives largely purged northern Rockefeller Republicans from their ranks, and because the old Dixiecrats who liked New Deal policies as long as they didn’t benefit minorities too much are gratefully a relic of the past. So on most issues not related to national security, there’s frankly very little reason for Senators to “reach across the aisle” anymore.

The clubby comity so prized by Senators now serves little purpose beyond the worst kind of bipartisanship on behalf of wealthy corporate interests and military contractors. It would be far better for Senators to worry more about how well their own views match those of their constituents, than how well they get along with one another.


By: David Atkins, Political Animal, The Washington Monthly, June 28, 2014

June 30, 2014 Posted by | Filibuster, Senate | , , , , , , | Leave a comment

“So When Is The Senate In Recess?”: An Extended Recess Broken Up By Several Pro Forma Sessions Is Still A Recess

Before the Circuit Court went all activist in the Canning case, everyone thought the question was defining what counted as a “recess.” On that issue, the Supreme Court had a clear answer today: “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”

That’s a nominal defeat for President Barack Obama, who had claimed that an extended recess broken up by several pro forma sessions is still a recess.

The history here is that a Senate with a Democratic majority used pro forma sessions every three days in 2007-2008 to prevent President George W. Bush from making recess appointments, and Bush didn’t contest the maneuver. Then, in 2011, the Republican majority in the House of Representatives tried the same workaround, which forced the Senate to stay “in session” because of the constitutional provision that when one chamber is in session, the other cannot adjourn for “more than three days.”

The Senate-initiated attempt to block recess appointments seemed dicey, but probably reasonable. The House-initiated obstruction, however, was constitutionally noxious. After all, the House has no constitutional role in presidential nominations. By refusing to recess, the Senate essentially is enforcing its role in advise and consent. That changes when lawmakers hold pro forma sessions instead of “real” sessions and enforce that role at their convenience. When the House does it, however, that chamber is being inserted into matters it has no business being involved in.

The court didn’t differentiate those two very different situations today, but Associate Justice Stephen Breyer reminded everyone that there is another option for combating the House: The Constitution allows the president to act if the two chambers cannot agree on adjournment. Although I argued strongly at the time that Democrats shouldn’t allow the House to veto nominations — and that therefore Obama should have acted — I believed that the unused Article II power of adjournment was the safest constitutional ground.

As it turns out, the House option is pretty much a moot question since Senate Democrats pushed through the nuclear option, which allows nominations to go through with a simple majority vote. The House option for obstruction was relevant only in cases in which the president and Senate majority were from one party, and the House majority and a Senate minority large enough to kill nominations by filibuster were from the other party. Given simple majority confirmation, the House no longer has the power to obstruct. I suppose it’s still true that a president and the Senate majority might prefer a simple recess appointment to going through the hurdles of confirmation, even if it’s guaranteed to happen, but that’s not as big a deal as the attempt to nullify entire agencies by the House in conjunction with a Senate minority.

To be sure, the Senate will still have the ability to refuse to confirm any nominee and to prevent recess appointments. But that was always going to be the case; the only thing at stake here (on the narrow question of what counts as a recess) was how inconvenient it was going to be for the Senate to do so. In the long term, odds are that future legislation will be written more carefully to prevent nullification by obstructing nominations, now that Republicans have revealed that such a weapon is available and will be used. Constitutionally, none of that is a big deal.

To get into the details, the question of what counts as a “recess” is complicated because the Constitution doesn’t offer a definition, and usage now and then is ambiguous. Both Breyer and Associate Justice Antonin Scalia discussed two meanings (recess between two sessions of Congress and recess within one session). But, in fact, there are three usages: everyone in and around Congress knows that “recess” can mean both short periods when Congress is out for a weekend, the night, or even lunch, or it can mean the longer “district work periods” that last for a week (with surrounding weekends) or longer. Without explaining it very well and therefore opening himself up to Scalia’s claims that it’s just an arbitrary ruling, Breyer is basically attempting to follow that perfectly common-sense, ordinary usage distinction. That is the correct way to go; it’s the only option that really conforms to Senate practice.

That leaves the question about the pro forma sessions. Breyer puts a fair amount of weight on the ability of the Senate to transact business (by unanimous consent, or presumably by a voice vote if it wasn’t challenged) during these sessions. That’s true, but it’s also true that everyone talks and acts as if the Senate is in a normal recess during those periods. So the court has erred, but it’s a close call, and relatively little is at stake in this portion of the decision, especially in the post-nuclear era.


By: Jonathan Bernstein, Ten Miles Square, Washington Monthly, June 27, 2014

June 29, 2014 Posted by | Congress, Senate, Supreme Court | , , , , , | 1 Comment

“GOP Globetrotting”: It Sure Looks Like A Recess

The Democratic Congressional Campaign Committee had a little fun at the GOP leadership’s expense this week, mocking the Speaker and Majority Leader for their recent globetrotting. As Dems see it, these guys have more pressing matters at hand.

With House Speaker John Boehner and Majority Leader Eric Cantor on separate overseas trips, Democrats are taking shots in their absence.

A new DCCC website — — pounces on the GOP leaders for their globetrotting during congressional recess, when Democrats say they ought be at work tax cut plan. Of course, globetrotting during congressional recess is a time-honored, bipartisan tradition, so the dig does lose some of its punch.

The House is scheduled to return next week and is expected to pick up where it left off — fighting over how to pay for a yearlong extension of the payroll tax break.

Boehner has been traveling in Latin America, with stops in Brazil, Colombia, and Mexico, while Cantor visited the Middle East, by way of Paris. (The image the Dems posted shows Cantor with a photoshopped beret in front of the Eiffel Tower.)

With Fox News and other Republicans raising a fuss last month over President Obama’s trip to Hawaii, I suppose it stands to reason that Dems are going to try to return the favor.

But I had a slightly different question: if the Speaker and Majority Leader are gallivanting around the world, doesn’t that mean Congress is in recess? Indeed, the L.A. Times report defended their travels by saying “globetrotting during congressional recess is a time-honored, bipartisan tradition.”

But I thought Republicans said Congress isn’t in recess?

For that matter, Eric Cantor’s own website told visitors this week that Congress “is not in session.”

It’s probably a tidbit to keep in mind during the debate over recess appointments.


By: Steve Benen, Contributing Writer, Washington Monthly Politica Animal, January 14, 2012

January 16, 2012 Posted by | Congress | , , , , , , , | Leave a comment

GOP Nightmare: Obama Fixes The Economy

President Obama’s bold decision to ignore GOP obstructionism and make recess appointments at the Consumer Financial Protection Bureau and the National Labor Relations Board started off 2012 with a bang, inspiring long-deferred jubilation among liberals and paroxysms of outrage from conservatives. There’s an enormous irony here: After three ridiculous years in which conservatives unfairly and absurdly attacked Obama for impersonating a socialist tyrant, the president is suddenly acting like an actual leader — and now the right is really freaking out.

Here’s the nightmare scenario: What if Obama runs totally wild and uses his executive powers to fix the economy? He might, gasp, win reelection!

Sounds crazy, I know. But that’s exactly the sense of panic that emerges from American Enterprise Institute blogger James Pethokoukis’ excited-to-the-point-of-stark-terror post “January Surprise: Is Obama preparing a trillion-dollar, mass refinancing of mortgages?”

Citing speculation from Jaret Seiberg, an analyst at Guggenheim Securities, Pethokoukis paints a picture in which Obama recess appoints a replacement for the current acting director of the Federal Housing Finance Agency (FHFA), Bush appointee Edward DeMarco. DeMarco’s job is to oversee the giant mortgage finance agencies Fannie Mae and Freddie Mac. DeMarco has long made it clear that he believes his primary job is to improve the financial bottom line of Freddie and Fannie, rather than employ the huge power the two government-sponsored enterprises (GSEs) exert over the residential mortgage market to make it easier for homeowners to refinance their mortgages and escape the threat of foreclosure. With DeMarco out of the way, so the theory goes, the Obama administration would have a free hand to push through a much more aggressive plan to help struggling homeowners.


That could lead to a mass refinancing program for agency-backed mortgages that would go well beyond the existing HARP program. That could hurt agency [mortgage-backed security] pricing and result in higher financing costs going forward. Yet it also could be a big boost for the economy and housing going into the election.


…[S]ome $3.7 trillion of mortgages would be refinanced. That’s right, this would be the Mother of All Mortgage Refinancing Plans. It would help roughly 30 million borrowers save $75 billion to $80 billion a year. As Mayer puts it: “This plan would function like a long-lasting tax cut for these 25 or 30 million American families.” … Talk about a political and economic game changer in this presidential election year. Obama could offer a trillion-dollar stimulus — as measured over a decade — that would directly and immediately impact tens of millions of Americans suffering from the housing depression. Cash in their pockets. Imagine the electoral impact on key states, such as Florida, suffering from both high unemployment and devastated housing markets.

If only. As a Federal Reserve white paper analyzing problems in the housing sector and reviewing potential solutions noted on Wednesday, 12 million U.S. homeowners are currently underwater on their mortgages. The steady flood of newly foreclosed properties hitting the market — expected to be a million per year in both 2012 and 2013 — exerts a relentless downward pressure on home prices. There are few things the Obama administration could do that would have a bigger positive effect on the overall economy than a really large-scale program of homeowner relief.

So how realistic is the January surprise scenario? As with all good conspiracy theories, there are some grains of truth. DeMarco has definitely been obstructing the Obama administration’s efforts at housing reform. Even the usually mild-mannered Federal Reserve hints at this reality in its white paper. Sure, there would be a cost to a large-scale refinancing program, but the benefits might well outweigh the downside:

“Nonetheless, some actions that cause greater losses to be sustained by the GSEs in the near term might be in the interest of taxpayers to pursue if those actions result in a quicker and more vigorous economic recovery.

Protecting Fannie and Freddie’s balance sheet at the expense of the nation’s is penny-wise and pound-foolish, in other words. Why go to all the trouble and expense of bailing out the GSEs if not to use them to good effect?

However, that still doesn’t quite connect the dots between the appointment of Richard Cordray to run the CFPB and a possible recess appointment that would replace Edward DeMarco. First of all, the Obama administration’s efforts to reboot housing have been, at best, halfhearted, and their failure more properly should be blamed on the White House than a single agency administrator. (And late Thursday afternoon, Bloomberg News reported that the White House was denying it had any new refinancing plan in the works.) Secondly, the legal basis for shoving out DeMarco and replacing him with a recess appointment seems especially iffy. Cordray is considered an independent regulator — so, theoretically, he can’t simply be fired at will by the White House, (although his “acting” status does inject some fuzziness into the equation). According to reporting by Ezra Klein and Brad Plumer, Treasury Secretary Timothy Geithner explored the possibility of firing DeMarco, but ultimately found it unfeasible. Republicans are already threatening to sue the administration for the current batch of recess appointments; axing the existing director for the FHFA in pursuit of an election-year housing reform agenda could easily precipitate a constitutional crisis.

But then again, Republicans would only have themselves to blame for the chaos that would ensue if Obama did take the unlikely step of all-out war. In 2010, the Obama administration proposed North Carolina banking commissioner Joseph Smith as its nominee for FHFA director. But as with so many of Obama’s economic-policy-related nominations, Smith’s appointment by the Senate Finance Committee’s ranking Republican, Richard Shelby, was scuttled on the grounds that Smith was unlikely to resist Obama’s housing reform agenda.

So there is after all a direct connection between the Cordray recess appointment and the FHFA. Senate Republicans have routinely blocked Obama’s executive branch appointments, not because they have any particular problem with the quality of the people being proposed for the jobs, but because they want to block Obama’s reform agenda. It’s a travesty of government — and a made-to-order campaign platform. Want to know why the economy sucks? Because Republicans won’t let Obama appoint the people necessary to take direct action — whether that be at the Federal Reserve, or the FHFA, or anywhere else.

By: Andrew Leonard, Salon, January 5, 2012

January 7, 2012 Posted by | Economic Recovery, Economy, Election 2012 | , , , , , | 1 Comment

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