The following article was posted on the Washington Post website, reprinted from the Volokh Conspiracy site on April 11th of this year. With the sudden death of Supreme Court Justice Antonin Scalia came the unnecessary fear that Barack Obama could make a unilateral appointment to the Court—a recess appointment for example. Jonathan Adler explains just how wrong that concern happens to be. Even Mr. Obama’s propensity for ignoring the Constitution—its requirements and limits on his power—will not allow him to summarily place the 5th Marxist on the Court.
For those unfamiliar with Mr. Adler and the Volokh site, please make it a habit to read both as often as possible. They are among the best for news and information concerning court decisions, new and existing law, etc. Also, any summary, analysis or interpretation presented by Mr. Adler will be without peer.
by Jonathan H. Adler
Over the weekend, Gregory Diskant suggested in a Post op-ed that President Obama could unilaterally appoint Judge Merrick Garland to the Supreme Court if the Senate fails to act on his nomination. My co-blogger Ilya Somin has explained why Diskant is mistaken. I would add a few points to Ilya’s critique.
First, the idea that the Senate has an affirmative duty to act in order to reject or “veto” a nomination does not square with the original understanding of the Appointments Clause. As Adam White has explained, the original understanding of the Founders considered, and ultimately rejected, a proposal to require the Senate to affirmatively reject a nomination in order to prevent a confirmation. Moreover, as Chief Justice Marshall noted in Marbury v. Madison, nomination and appointment are separate actions. Under the text of the Appointments Clause, the former is the president’s alone, while the latter is conditioned on Senate action.
Second, consistent practice establishes...
(Excerpt) Read more at thecoachsteam.com ...
