Can loophole allow Obama to appoint Supreme Court justice?

While the Senate has refused to consider President Obama's appointment of Merrick Garland to the Supreme Court, there might just be a loophole.

TheGrio Staff

Nov 15, 2016

While the Senate has continued to refuse to consider President Obama’s appointment of Merrick Garland to the Supreme Court, there might just be a loophole to allow Garland to secure the opening on the highest court in the land despite the Senate’s refusal to do its constitutional duty.

The Constitutions grants the president the power to make appointments to the Court, stating that he “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.”

The clause concerning the “advice and consent” of the Senate, however, brings up the question of what to do when the Senate simply fails to perform its duty.

–President Obama says Senate obligated to vote on Supreme Court nominee–

The Supreme Court has already spoken on the issue of a waiver of rights when it 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.’”

Therefore, the failure of the Senate to act within a reasonable amount of time could be taken as a waiver of its rights. This could allow the president to argue that the Senate has waived its rights to “advice and consent” and then go on to exercise his appointment powers in the wake of inaction by the Senate.

Even just the threat of such a move could be enough to get the Senate to pull its act together and finally allow our country to function as it is supposed to.