Has the Senate Waived Its Objections to the Garland Nomination?
This Washington Post op ed by Gregory Diskant is getting more play than it probably deserves, given the weakness of the arguments. Its basic point is that by failing to vote on the Garland nomination, the Senate has failed to do its constitutional duty and so should be deemed to have waived its ability to refuse consent. Accordingly, the President can make the appointment anyway. For some sharp criticisms, see here by Ilya Somin ("wrong for multiple reasons"), here by Jonathan Adler ("an argument that is extremely hard to take seriously"), and here by Ed Whelan ("Gobsmackingly Stupid Op-Ed").
I agree. The first problem, of course, is that the Senate does not have any constitutional duty to do anything (as I argue here). The second problem is that, even if the Senate has a constitutional obligation to give advice and signal consent/non-consent, it has done so, through its majority leader and judiciary committee chair. Nothing in the Constitution says that the Senate must signal non-consent through a formal vote (and again as I argue here) the Constitution (Art. I, Sec. 5) gives the Senate the power to determine the "Rules of its Proceedings."
But even assuming the Senate does have a duty to hold a vote, nothing in the Constitution suggests that the remedy for failure to hold a vote is for the President to proceed with the appointment anyway. To the contrary, when the framers thought a failure to object should constitute a waiver, they spelled out the procedure expressly. Article I, Section 7, states that a bill that has passed the House and Senate is sent to the President, and "[i]f he approve[s] he shall sign it, but if not he shall return it, with his Objections to that House it which it shall have originated." (Note: this is how the Constitution describes a duty to act -- quite unlike the phrasing of the Senate's role in appointments). Then it continues: "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it..."
That is how the Constitution establishes a waiver by failure to act. The fact that the framers wrote a waiver-by-failure-to-act into the presentment clause shows they did not think it was implied merely by creating a duty to act. The fact that they did not write such a waiver into the appointments clause shows that, even if that clause establishes a duty to act, it does not imply a waiver-by-failure-to-act.
If Diskant had any founding era commentary or any subsequent appointments practice in support, perhaps it would be a different matter. But he doesn't, and doesn't claim otherwise.
Maybe it is possible to read the appointments clause as Diskant proposes (though I doubt even that). But constitutional interpretation is not (or should not be) merely an exercise in the possible. The question is not what reading is possible; it is what is the most likely meaning of the clause. I see no way to call his reading the most likely one.
(Thanks to Michael Perry for the original pointer on the Diskant article and to Professor Somin for the link to my earlier arguments).