So, who is going to appoint the murdered Justice Scalia's replacement? Congressional Republicans have vowed that it will not be Obama. They say the American people should have a say. By that they mean our next president should do the appointing and they are praying that the next prez is a Republican (Paul Ryan via a brokered convention?).
But according to an article from the Washington Post (published in the opinion pages on 4/8/2016) the Senate Republicans are (by refusing to hold hearings) waving their right to provide advice and consent.
|Gregory Diskanta: Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing (article excerpt) 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.
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... (Gregory Diskanta is a law firm senior partner).
If the Republicans don't cave and hold hearings (during which they could reject Garland, if that is what they want to do), then Obama should definitely go this route. Not that I'm enthusiastic about Garland. From what I hear he's a "moderate". But it is Obama's prerogative to nominate a replacement justice, and if the Congressional Republicans refuse to even hold hearings, then hell yeah Obama should go around them if he can (as Diskanta says he can). Hopefully he doesn't wuss out.