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Thursday, March 24, 2016
Re: The U.S. Senate's refusal to perform its duty to nominate President Obama's appointment to the Supreme Court
“There may be a way for Obama... to force the Senate’s hand to do its job to consider and vote on Merrick Garland’s appointment to the Supreme Court and, if they do not, to seat Judge Garland on the Court without their action.
“There is a maxim in the law, from the Latin, ‘Qui tacet consentire videtur, ubi loqui debuit ac potuit’ (He who is silent, when he ought to have spoken and was able to, is taken to agree). 4 Wigmore on Evidence, 3rd ed., § 1071.
“Thus, legally, consensus can be presumed to exist until voiced disagreement becomes evident. A corollary is that if you disagree, the onus is on you to say so. This legal principle has been recognized by the Supreme Court (Justice Scalia, no less) in the case United States v. Irvine and 1st Trust Nat'l Assoc., 511 U.S. 224, 114 S.Ct. 1473, 128 L.Ed.2d 168 (1994).
“For example, ‘the maxim qui tacet consentire videtur had also been applied, as between the parties, to certain mercantile dealings, as where an account current was sent to the party by letter, and no objection made to it within a given time, established by convenience or by commercial usage. * * *’ Poy Coon Tom v. United States, 7 F.2d 109 (9th Cir.1925).
“The Senate has a constitutional duty to ‘advise and consent’ to Supreme Court nominations made by the President. If they do not perform that duty and register their objection to the nomination within a reasonable period of time (the average time it has taken in the past to consider and confirm or reject a nominee is about 90 days), then their silence on the issue can legally be considered their consent to the nomination.
“This approach has been argued and discussed in detail with respect to executive department appointments (exploring arguments for and against) in a law review article by Harvard Law Professor, Matthew Stevenson, published in the Yale Law Review... See, ‘Can the President Appoint Principal Executive Officers without a Senate Confirmation Vote,’ 122 Yale L. J. 940 (January 2013) (Yale Law Journal).
“Despite Professor Stevenson’s reluctance to apply silence as consent to judicial appointments, he would argue that it can and should be so applied. [President Obama should] advise the Senate that if they have not acted to take up consideration (i.e., hold hearings and vote) on Judge Garland by June 30, 2016, then he will consider their silence on his confirmation to be legal consent and he will swear Judge Garland in as a Justice of the Supreme Court and seat him on the bench.
“If nothing else, this may force the Republicans’ hand to actually hold hearings and vote, or Judge Garland will be seated and the issue can be litigated in the Courts. It may perhaps be the case to set a precedent that the Senate must do its job when a President nominates a justice for the Supreme Court.
“[Fredrick Ford, the author of this viewpoint,] invites everyone to share this post with as many people as possible and bring pressure on the White House to consider taking this action” (Frederick Ford).