This would require some serious stones on the part of the president of the United States.
But consider what a legal scholar, Gregory L. Diskant, is offering: Barack Obama can appoint U.S. Chief District Judge Merrick Garland to the Supreme Court without Congress providing its “advice and consent.”
The question for me: Does the president have the guts to do it?
Diskant, writing for the Washington Post, asserts that the Constitution has a provision that allows a presidential appointment if the Senate “waives” its responsibility to provide its consent. Thus, the notion goes, the president is within his right as the nation’s chief executive to simply seat someone on the highest court because the Senate has refused for an unreasonable length of time to fulfill its constitutional responsibility.
Diskant cites President Ford’s appointment of John Paul Stevens to the court in 1975. Nineteen days after the president nominated Stevens, the Senate voted 98-0 to confirm Justice Stevens.
President Obama nominated Garland months ago after the tragic death of longtime conservative Justice Antonin Scalia. The Senate refused to give his nominee a hearing, let alone a vote, saying that a “lame duck” president shouldn’t have the right to fill a vacancy on the court; that job should belong to the next president, according to Majority Leader Mitch McConnell, R-Ky.
“No Drama Obama” could go out — if he so chose — with a serious boom if he follows Milbank’s suggestion.
Given the obstruction that Senate Republicans have thrown in front of the president for nearly his entire two terms in office, it would serve them right if Barack Obama took the dare being offered.