It is certain that Democrats will attempt to block any radically conservative nominee that Donald Trump comes up with to fill Antonin Scalia’s seat. It will no doubt include a filibuster. The GOP, however, could initiate the “nuclear option” and overcome this but will they? The NO simply lets the Senate head call a vote to change the number of votes needed to stop the filibuster from 60 to a majority, which the Republicans have. Bingo, the Supremes have gone ultra conservative.
But hold on, Dahlia Lithwick of Slate says, it isn’t Donald Trump’s nomination to make and actually we already knew that. The Senate’s token asshole, Mitch McConnell, stopped Barack Obama’s nomination of Merrick Garland. And has-been John McCain had also said that should Hillary Clinton become President, he would block all of her nominees. And he doesn’t even know who they would be. This all confirms the stupidity of the current Republican Party.
The only answer now is for the Democrats to stand firm and do everything in their power to prevent Trump’s Supreme Court nominations. Unless he comes to his senses and works with the Dems on a nominee, and we know that won’t happen. But here’s the kicker, the Advise and Consent clause of the Constitution gives the President the right to do many things, including nominate judges for the Supreme Court. The court then approves or disproves the nomination.
But what if the Senate doesn’t act. 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 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.”
Although he is running out of time, Obama could “…advise the Senate that he will deem its failure to act by a specified reasonable date in the future (perhaps 30 days) to constitute a deliberate waiver of its right to give advice and consent. I know we’re in the change of command but the GOP started the fight and it’s the Democrats time to finish it. And that would be, if there is no action by the Senate, Obama appoints Garland to the Supreme Court. Case closed.
It happened in 1975 under Gerald R. Ford’s presidency you can read here.