The essence of the argument is contained in this passage:
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.
What I like about this idea is that it finds a way of cutting through the difficulty seemingly created by this two-fold truth about the Republican obstructionism: on the one hand, the Constitution does not explicitly compel the Senate to act, nor forbid the Senate from just sitting on its hands; but on the other hand, what the Senate is doing is clearly in violation of what the founders had in mind when they gave the Senate the task of "advise and consent."
But if that did not happen, and "the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court."
In that event, Diskant assumes that the Senate would challenge the president's action, taking the matter to the Supreme Court. That would raise the interesting question about how the four conservative and Republican-appointed justices would rule.
(And what would the outcome be if the conservatives took the partisan route and there were a 4-4 tie?)
I find this idea most intriguing. What do you think? Should the president follow this strategy?