Our system of government prides itself on checks and balances. One of these
particular checks is that the President checks the Supreme Court by appointing and confirming nominees, and the Senate checks the President by giving their “advice and consent.” Recently, the Senate, controlled by Republicans, has made it known that they will refuse to give their “advice and consent” to President Obama’s nominee, Judge Merrick Garland. Does the Senate have the right to halt Supreme Court nominations until a candidate of their liking comes before them? What exactly does “advice and consent” entail?
To start, we must admit that the Constitution finds much of its glory in vagueness and ambiguity. The appointment clause of the Constitution states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint.” The President retains the power to nominate and appoint, while the Senate has the power to give their advice and consent in between. But what happens if the Senate chooses to refuse their Constitutional duty?
The Senate has the power to approve or deny the nominee based on their advice and consent. But what if they refuse to give their advice and consent? In the United States v. Olano the Supreme Court said that a right “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.” So, if the Senate waits too long can they forfeit their right to advise and consent on the Supreme Court nominee? Could a failure to act be considered a silent consent?
There are dozens of nominations to federal judgeships pending before the Senate, many pending for more than a year. That’s a year that American citizens have gone with empty Courtrooms and half-full benches. Would a healthy spat between the Senate and President on the reasonable amount of time the Senate has to give their advice and consent be so horrible? The Supreme Court would rule on this issue. It is only reasonable for the President to expect the Senate to give their advice and consent in a reasonable time frame so the government can function properly and smoothly.
