Resolving the Garland standoff
Monday, April 4, 2016 by Dave Winer

I've been reading lots of stuff about the Supreme Court and wondering when someone is going to say the obvious thing about how the deadlock re Judge Garland will be resolved. 

Clearly it will be resolved, if possible, by the Supreme Court itself.

Here's how it will go.

  • The President will wait a reasonable amount of time, let's say one day past the previous longest confirmation in the last 30 years. 
  • On that day, it will sue someone, Congress perhaps? Maybe Judge Garland. Not sure who they sue, they would have to find someone. 
  • The argument is that having had a chance to advise and consent, by being silent, the Senate has given its consent. 
  • Therefore the Executive branch would like Judge Garland to take his place on the court, starting now, right after the court decides this case, assuming they agree with the Executive.

If that's the plan, it explains why Obama chose someone as totally middle-of-the-road as Garland. As if to say to the Court, here you go, this is exactly the guy no one could possibly object to. So go ahead and make a decision that the Repubs are full of it, that there is no Biden Rule, and that by not advising and consenting, the Senate has given their consent. 

I think that's how the law actually works. Consistent with other situations.

 I suppose it's possible that vote will be a 4-4 vote too, in which case the US govt is incapable of making a non-partisan decision. But before we give up, we'll have to try it. 

And now I get to add the famous disclaimer: I Am Not A Lawyer. ;-)