Obama Can Appoint Garland to Supreme Court if Senate Fails to Act

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One day in law school my contracts professor looked at me and point blank asked, "What is a waiver?" I dropped my head, looked down, and lo and behold, in my written notes from the previous class was the definition, verbatim. I looked up and said "A waiver is a voluntary relinquishment of a known right." Whew!

As a result, waivers are a legal concept I get, viscerally.

I never thought about this before, but if the Senate fails to even give the guy a hearing, that sure does seem like a voluntary relinquishment of a known right, does it not?
 
This'll be a fun one if it plays out that way.
 
It would be another move by Obama to ignore the Constitution. Weird how this pleases so many here.
We have no Justices "Appointed" in history.

Such a reading of his powers would make a mockery of the Constitution. It would change the meaning to Notify the Senate, ask their advice if you want, but appoint if you will.
 
MarAzul said:
It would be another move by Obama to ignore the Constitution. Weird how this pleases so many here.
We have no Justices "Appointed" in history.
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That is flagrantly untrue. Eisenhower alone put 3 people on the court with recess appointments.

barfo
 
barfo said:
That is flagrantly untrue. Eisenhower alone put 3 people on the court with recess appointments.

barfo
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Facts be damned
 
barfo said:
That is flagrantly untrue. Eisenhower alone put 3 people on the court with recess appointments.

barfo
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Didn't the Senate confirm these appointment after they returned? Do you see this as the same thing? I don't.
 
I love how lib's pat themselves on the back when they think they one up a righty.

And the other way around too.

So funny.
 
if he is going to just appoint someone, he should have nominated himself
 
Stevenson said:
One day in law school my contracts professor looked at me and point blank asked, "What is a waiver?" I dropped my head, looked down, and lo and behold, in my written notes from the previous class was the definition, verbatim. I looked up and said "A waiver is a voluntary relinquishment of a known right." Whew!

As a result, waivers are a legal concept I get, viscerally.

I never thought about this before, but if the Senate fails to even give the guy a hearing, that sure does seem like a voluntary relinquishment of a known right, does it not?
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The senate must give consent. If they don't vote, they're not giving the consent. How the senate chooses to give consent is up to them, they make the rules that govern the senate (per constitution Article I, Section 5: "Each House may determine the Rules of its Proceedings").

Period.

Wishful thinking.

There's no waiver involved or given, either. In fact, the senate has explicitly said they reserve their right.
 
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barfo said:
That is flagrantly untrue. Eisenhower alone put 3 people on the court with recess appointments.

barfo
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Barfo with the usual unwise position.

http://www.law.virginia.edu/html/alumni/uvalawyer/spr11/recess.htm

By 2000 U.S. presidents made more than 300 recess appointments and only 34 were not confirmed by the Senate. However, the constitutionality of recess appointments does not make them wise, Motz said.

After President Dwight Eisenhower’s three recess appointments (Supreme Court Chief Justice Earl Warren, and Justices William J. Brennan and Potter Stewart), the Senate Judiciary Committee issued a report saying that recess appointment should only be made under unusual circumstances, Motz said.
 
We'll see how this idea goes with sexual relations. You can just find a girl who can't talk and if she doesn't consent you just have to "appoint" yourself on her. Seems fair. Is trying to slap you a vote? Hmmm, kinda vague.
 
PS, if 9/11 was just an attack on every law school in this country would anyone have even cared?
 
Denny Crane said:
Barfo with the usual unwise position.
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My name is not Eisenhower. I took no position here, I merely commented that appointments had in fact happened in the past.

barfo
 
MarAzul said:
Didn't the Senate confirm these appointment after they returned? Do you see this as the same thing? I don't.
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Those 3, yes. I believe there was one who did not get confirmed, but I'm not sure how that matters.

Same thing? - no, not precisely. You didn't, however, state that this very same scenario had never happened before. You made the broader, and incorrect, claim that no one had been appointed before.

barfo
 
There are parliamentary tricks that can keep the senate in session through the election. If the republicans lose, they might look at passing Garland if they think Bernie Sanders would appoint someone even further left.

See what I did there?
 
Denny Crane said:
There are parliamentary tricks that can keep the senate in session through the election. If the republicans lose, they might look at passing Garland if they think Bernie Sanders would appoint someone even further left.

See what I did there?
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Misspelled paramilitary?
 
http://www.foxnews.com/politics/201...-weapon-to-stop-obama-recess-appointment.html

All McConnell and House Speaker Paul Ryan, R-Wis., have to do is schedule what are called “pro-forma” sessions at three-day intervals for the rest of the year. Pro-forma sessions are brief meetings of the House and Senate, lasting but a minute or two – and sometimes, a matter of seconds. They help the House and Senate comport with the constitutional mandate of huddling every three days – even if they aren’t really doing anything.

The House and Senate don’t conduct any business during these confabs. In congressional parlance, they’re sometimes referred to as just “gavel-in, gavel-out.” No votes. No speeches. Few words are uttered at all.

The phrase “pro-forma” is derived from Latin, meaning “formality.”

Congress doesn’t consider itself adjourned or on recess if it’s “meeting” every three days. And that’s all it takes to block a recess appointment for the rest of the president’s term.
 
Stevenson said:
For the record, the only ones ignoring the constitution regarding this vacancy are the Republicans.
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Where in the constitution does it demand the Senate hold hearings? Where does it say the president can get tired of waiting and institute his own laws or non-recess appointments?

Or the Federalist Papers or similar would do.
 
What do you think "advise and consent" means? That means hold hearings. Comeon.
 
And if they choose not to hold hearings, then they are effectively waiving their right to do so. That is what a waiver is.

It's like when someone is arrested. They have a right to remain silent. That does not mean they MUST remain silent. If they choose to waive that right, then that means they no longer will be silent and will testify. That's the consequence of waiving that right.

The Senate has a right to hold hearings. But you are right, it doesn't mean they MUST hold hearings. But if they don't, there are consequences from that waiver.
 
I think Obama should make it very clear that he will appoint Garland at some specific date if the Senate doesn't take steps to do their duty of advise and consent. Then the ball would be in the senates court. They could try and fight it in the courts, they could hold hearings, or they could pull some parliamentary tricks. If the Republicans just did parliamentary tricks, i think they would look like total asshats by the public. It might force their hand to do more. It would do nothing to actually get Garland onto the court, but it might highlight the vitriolic blood coursing through the republican senates veins.
 
Stevenson said:
What do you think "advise and consent" means? That means hold hearings. Comeon.
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It means they do whatever they choose to do to approve or deny the nominee (in this case). There is no time limit because the senate sets their own rules.

It doesn't mean "Harry Reid can do what he wants because he's a democrat but republicans can't do the same thing."
 
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