Is there an out for Obama on the SCOTUS appointment?

From Robert Reich

This strikes me as a reasonable idea: If the Senate fails to provide the President “advice and consent” on his nomination of Merrick Garland to the Supreme Court, within a reasonable amount of time, the Senate should be deemed to have waived its right under the Constitution to provide such advice and consent. The Supreme Court itself has repeatedly held that a constitutional right may be forfeited by the failure to make timely assertion of that right.

So President Obama should advise the Senate that he will deem its failure to act within, say, 90 days (the historical average between nomination and confirmation is 25 days) to be a waiver of its right to participate in the process. If after 90 days the Senate still hasn't acted, the President will exercise his appointment power by naming Garland to the Supreme Court.

I expect the Senate would then bring suit challenging the appointment. And the Supreme Court would decide, presumably with Garland recusing himself.

Our system would work better this way. The threat that a president could proceed with an appointment if the Senate fails to do its job would force the Senate to provide its advice and consent on a timely basis so our government can function.

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