What You Need to Know About the Popular Supreme Court Petition

November 15th 2016

Danielle DeCourcey

Some of the most consequential battles between Democrats and Republicans are over appointments to the highest court in the country, and a viral petition wants President Barack Obama to make a bold move for his U.S. Supreme Court nominee.

Obama nominated Judge Merrick Garland in March to fill seat vacated by the deceased conservative Justice Antonin Scalia, but Republicans have blocked his appointment. 

The Republican controlled Senate, led by Senate Majority Leader Mitch McConnell (R-Ky.), has refused to even consider him, prolonging the choice at least until President-elect Donald Trump's Republican administration takes office.

Thousands of frustrated people have signed a petition requesting Obama bypass the Senate and appoint Garland without Senate consent. More than 100,000 people have signed it at the time of publication.

"Appoint Garland Now (Senate Has Waived Its Rights)"

The petition is based on an April opinion piece in The Washington Post.

Gregory L. Diskant is an attorney at the law firm Patterson, Belknap, Webb, and Tyler and a member of the national governing board of Common Cause. Diskant wrote that the Senate's refusal to hold consideration hearings for Garland is equal to a waiver of its rights.

"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," he wrote in the Post. " A waiver is an intentional relinquishment or abandonment of a known right or privilege."


However, a law professor told ATTN: that the petition is based on "wishful thinking."

ATTN: asked Eugene Volokh, a law professor at the University of California Los Angeles, if a waiver existed that would allow Obama to appoint a Supreme Court Justice without Senate approval. He said simply, "no."

He added that the Senate cannot be forced to consider a nominee, and Obama cannot appoint one without Senate approval.


"The Senate is not legally obligated [to consider Garland]," he said. "You can say as a matter of argument that they ought to, and they could certainly make the case for the voters that they should try to, but this is one of the many, many things that is left to the political process."

Volokh said that, as far as he is concerned, the petition seems to be gaining steam because people want to believe the legal argument it's based on, even if it isn't true.

"People interpret the law and their understanding of what's possible and what's not with an eye toward what they like," he said.

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