It is perfectly legal for President Obama to appoint Merrick Garland as the next Supreme Court Justice, because the Senate has refused to give Garland a hearing.
Singer leads stealth campaign to thwart Trump
Singer Barbra Streisand, a major Hillary Clinton supporter and one of Hollywood’s most outspoken leftist activists, is calling on President Obama to bypass Congress and unilaterally appoint his pick for the U.S. Supreme Court.
The Senate declined to hold hearings or votes on Judge Merrick Garland’s nomination as part of its broad “advice and consent” power. Obama nominated Garland in March to replace the late Justice Antonin Scalia.
Now that Donald Trump has won the election and is set to nominate a judge, Streisand has circulated a petition urging Obama to quickly appoint Garland to the court before Trump can be sworn in as president.
“If you are concerned about the Supreme Court, please consider going to this website and signing a petition asking President Obama to appoint Merrick Garland,” Streisand wrote in a note to her supporters. “According to The Washington Post, he has the power to do this since Congress has refused to vote, and apparently that can be considered a waiver of its rights to advise and consent. If there are 100,000 signatures, the White House must give this its consideration.”
Streisand was referencing a Washington Post column by Gregory L. Diskant published in April. It was headlined, “Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing.”
The Appointments Clause of the Constitution states that the president “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.”
Diskant claims the Appointments Clause actually grants two powers to the president: the power to “nominate” and the power to “appoint.” While the president must clearly seek the “Advice and Consent of the Senate,” Diskant argues, by deciding not to act and hold hearings or votes, the Senate has waived its right of advice and consent.
Somehow, Diskant claims, the Senate’s failure to act on the nomination allows the president to unilaterally appoint an individual to the court.
At the time of this report, Streisand’s petition had 107,464 signatures – more than the 100,000 required to get a response from the White House.
On several occasions, Democrats have filibustered and blocked judicial nominations made by Republican presidents. For example, in 1987, when Joe Biden served as chair of the Senate Judiciary Committee, he fought to stop confirmation of Ronald Reagan Supreme Court nominee Judge Robert Bork. Biden explained, “The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary. The Senate has an undisputed right to consider judicial philosophy.”
In August, Streisand told Australian journalist Michael Usher she would leave America if Trump won his race for the White House.
“He has no facts. I don’t know, I can’t believe it. I’m either coming to your country, if you’ll let me in, or Canada,” she said.
It remains unclear whether she will actually honor her promise to leave.