Supreme Court Nonsense

Every once in a while, it's fun to read nonsense online. Through the magic of the internet, one can explore the finer points of legal name fraud, follow Martin Shkreli's Twitter account, or peruse the ramblings of ignorant bloggers. Recently, I have seen more and more silly articles written or shared regarding the Supreme Court in light of a certain recent election. To make things worse, these articles are often written by attorneys! I generally try to keep my attorney-written nonsense confined to my workday, and it depresses me to see this material spill over into my leisure reading. 

Because misery loves company, here are some of the stranger things I have read regarding the Supreme Court recently. These articles are written by attorneys, which raises the concern that the legalistic bunk in them may be viewed as legitimate by the general public. I'm flagging them for this reason (and because every once in a while, it's relaxing to just lash out at something awful rather than destroying something beautiful).

First is an old article, but one that I have started seeing more often now that Trump won the election. Gregory Diskant wrote this article at the Washington Post back in April in which he claimed that the Senate, by refusing to hold hearings on Merrick Garland's appointment had waived its role in confirming Garland, and that Obama could therefore simply appoint Garland to the Supreme Court.

From the article:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has 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.’ ” 

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right. 

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court. 

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

First, it is a massive and unsupported leap to contend that the Senate's refusal to act constitutes a waiver of its "right" to provide advice and consent. This power of the Senate is distinct from rights that individuals may waive in the context of, say the Fourth and Sixth Amendments. Moreover, the Senate is not waiving any right -- its refusal to hold hearings constitutes its refusal to consent and therefore is an instance of it exercising its power.

Also, I suspect that Diskant's denial of a constitutional crisis following Garland's appointment would hold up if an equally divided Court (Garland would be recused, after all) were unable to reach a decision, leaving the ultimate question of the Senates power or lack thereof up to a Court of Appeals. This is, admittedly, an unlikely outcome, because I suspect the Supreme Court would most likely dismiss Diskant's waiver theory faster than you can say "argle bargle."

For a more recent example of Supreme Court nonsense, look no further than this article at The Hill written by J. Stephen Clark, a law professor at Albany Law School. While Diskant's article at least contains some attempt at legal rigor akin to that in Facebook copyright disclaimers, Clark's suggestion is that lawyers to little more than put their fingers in their ears, shout "la la la," and ignore rulings of the Supreme Court. For those who think this characterization is unfair, here is part of the article:

Donald Trump will get to fill a Supreme Court vacancy that should not exist. It persists only because of outlandish ideological obstruction by Senate Republicans. That obstruction will now taint the eventual appointee, whom the legal community should shun after confirmation. 

. . .

The question is whether everyone should just roll over and capitulate as if the ideological grab never happened. The Trump appointee will be a member of the Court, with all the powers that come with the position. But ignoring the obstruction that preserved the vacancy for purely ideological reasons would validate that misbehavior as a new normal. 

An alternative is shunning. The Court's influence rests on its legitimacy as an impartial arbiter. But the Trump appointee will owe his or her position to an ideological scheme meant to keep the vacancy open for however many years it took to get a conservative. Such an appointee should be shunned as an illegitimate ideological plant.

Most importantly, the appointee’s illegitimate vote can be shunned. Because the appointee’s presence on the Court will be illegitimate, so too will be any 5-to-4 decision with the appointee in the majority. While people must obviously comply with such decisions, the legal community need not internalize them as legitimate additions to the law. Instead, they should be regarded as merely provisional, lacking precedential force and subject to overruling without constraint. Commentators should carefully designate and quarantine them.

As Clark admits in the article, the Senate refused to hold hearings on Garland's nomination for political reasons. This is consistent with the Constitution, which sets up the Senate as a political check on the President's power of appointment. If people like Clark believe that the Senate should not have blocked President Obama's nomination, they should vote the Senate out. But as the most recent election reveals, this apparently is not a significant concern for most voters.

But the most egregious portion of Clark's article is the last paragraph quoted above in which Clark seems to suggest that practitioners should simply ignore any 5-4 decision in which the Justice appointed to Justice Scalia's seat is in the majority. To any non-lawyers out there who are wondering -- no, lawyers and judges cannot simply ignore the decisions of the Supreme Court because they do not think that one of the Justices should be on the Court. This is, for lack of a better phrase, pure applesauce.

Arguing with proponents of these articles' views is often an exercise in futility. But hopefully this post will flag a small fraction of the nonsense and perhaps keep a few readers from being drawn into the nonsense.

UPDATE (11/15/2016)

The Washington Times reports that no less of a legal juggernaut than Barbra Streisand recently espoused Diskant's waiver theory and urged the appointment of Merrick Garland. Nevertheless, I stand by my arguments above. I will not criticize Streisand's comments, as I am concerned that she might sue me or take some other action that would ultimately draw even more attention to her inaccurate views on how the judicial appointment system operates.

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