Senate Republicans have effectively stopped Judge Merrick Garland’s nomination to the Supreme Court by refusing to hold a hearing on him for months, and it would seem Donald Trump’s victory as president-elect has essentially killed it.
Unless Barbra Streisand somehow manages to get her way.
The singer, a huge Hillary Clinton supporter and one of Hollywood’s biggest liberals, has sent out a letter imploring people to sign a petition urging President Obama to appoint Garland to the job quickly, before Trump is sworn in, to fill the seat vacated by Justice Antonin Scalia.
“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 writes in her note to followers and 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 is referencing an April op-ed piece in The Post written by Gregory L. Diskant, a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause.
Diskant said that the Constitution provides 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 says this language states the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.”
What does that mean?
It is “proper” to view a decision by the Senate not to act as a waiver of its right of advice and consent, claims Diskant. A waiver is an intentional relinquishment or abandonment of a known right or privilege.
So by not acting, the Senate has opened the door for Obama to simply appoint Garland.
Streisand has picked up the cause, sending out an email this week — signed “Kindest Regards, Barbra” — and posting a message on her website urging that a petition be signed asking President Obama to appoint Garland to the high court.
The movement — if it can be called that — doesn’t seem to have much steam, but the petition is only about 21,000 signatures shy (as of Tuesday at this writing) of its target, which must be reached by Dec. 9.