In his April 10 op-ed, “The Senate is waiving its right to give ‘advice and consent,’ ” Gregory L. Diskant explained how he thought President Obama could appoint Judge Merrick Garland to the Supreme Court if the Senate did nothing.
Mr. Diskant alternately characterized the Senate’s approval power as a “duty” and a “right.” Calling it a “right” makes no sense. Rights are claims that citizens have against their governments. Governments do not have rights; they have powers.
Citizens can waive their constitutional rights; governments cannot waive their powers by failing to exercise them. Indeed, one of the fundamental aspects of a power is that it confers discretion. For example, Congress has the power to regulate commerce but need not do so. Moreover, if this power is also somehow a duty, then the Supreme Court would likely punt on the question. The court has wisely decided not to tell the president how to best “take care” and would similarly be wise to not tell the Senate how to best give “advice and consent.” The best way to “restore a sensible system of government” is not by using verbal equivocation to get what we want. The best way is to vote.
Alexander Zajac, Washington
The Constitution’s framers clearly considered what would happen if one branch of government failed to act. Article I, Section 7 says: “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it.” The omission of a similar provision for the Senate’s failure to consider a nomination must have been intentional.
That the Senate’s stance is constitutional, however, does not make it right. Many constitutional powers would wreak havoc if used without limit. For example, the president could pardon all federal prisoners; the pardon power must have been granted on the implied condition that he would not. The Senate’s power to block all nominees must have come with a similar understanding.
Ilya Shlyakhter, Cambridge, Mass.
Whatever the framers of our Constitution intended by their use of the language “with the Advice and Consent of the Senate,” one interpretation should be universally accepted: They intended action, not inaction, to be taken by the Senate.
The president should consent to the advice of Mr. Diskant and appoint Judge Merrick Garland to the Supreme Court, lest he be viewed as having waived his constitutional right to “nominate” and “appoint.”
Mario E. Lombardo, Potomac