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

[Denny Crane]

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.

Obama can't appoint Garland if the republicans do Harry Reid's pro forma trick. No recess, no recess appointments.

W could have done the same thing commie libs are proposing now to circumvent the constitution, and Obama so far has followed suit.

If you don't like what the senate is doing, vote 'em out. 1/3 of them are up for election every 2 years.

 

[Denny Crane]

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.

Bullshit.

Fantasy.

They've declared they maintain their right. They haven't chosen to waive their right.

"We won't hold hearings until the next president is determined" vs. "we choose to waive our right to advise and consent." Two very different things.

Again, there's no timetable for the republicans to act. Obama cannot make rules for the senate, such as "have hearings by X date or else". The senate writes their own rules, per the constitution. Article 1, Section 5.

 

[dviss1]

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.

They've been doing this for almost 8 years so they'll know exactly how.

 

[dviss1]

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.

No it's your side that's ignoring the constitution. They have NO good reason to hold up this appointment.

 

[dviss1]

"Today the system seems to be broken. Both parties are at fault, seemingly locked in a death spiral to outdo the other in outrageous behavior. Now, the Senate has simply refused to consider President Obama’s nomination of Judge Merrick Garland to the Supreme Court. Meanwhile, dozens of nominations to federal judgeshipsand executive offices are pending before the Senate, many for more than a year. Our system prides itself on its checks and balances, but there seems to be no balance to the Senate’s refusal to perform its constitutional duty."

Now, the Senate could simply hold a vote. WTF is supposed to be done if the Senate refuses? The advice and consent clause would be satisfied if they did.

Republicans have been doing this for the past 8 years. Holding up judicial appointments is very Yertle like.

 

[PtldPlatypus]

Bullshit.

Fantasy.

They've declared they maintain their right. They haven't chosen to waive their right.

"We won't hold hearings until the next president is determined" vs. "we choose to waive our right to advise and consent." Two very different things.

Again, there's no timetable for the republicans to act. Obama cannot make rules for the senate, such as "have hearings by X date or else". The senate writes their own rules, per the constitution. Article 1, Section 5.

Sounds like a constitutional debate that would need to be settled by the Supreme Court. We all may have our opinions about the constitutionality of the President specifying a time frame for action and appointing a justice upon expiration thereof, but it is not our job to make that determination.

If nothing else, it would be fascinating to see it play out, even if it doesn't fall in the President's favor. At the very least we'd get another precedent out of it.

 

[Further]

Obama can't appoint Garland if the republicans do Harry Reid's pro forma trick. No recess, no recess appointments.

W could have done the same thing commie libs are proposing now to circumvent the constitution, and Obama so far has followed suit.

If you don't like what the senate is doing, vote 'em out. 1/3 of them are up for election every 2 years.

To tell the truth, Im not sure 1) if it would be constitutional and 2) If I would support such a precedent. However, I think you are too quick often to determine based on your personal interpretation of the constitution what is and is not permissible. There are reasons that people become constitutional scholars and spend their lives debating many of theses issues. So much has to do with interpretation and exactly which word you focus on. But seems to me, that at least a decent argument can be made that it would be constitutional for Obama to appoint in these circumstances. Not saying it would be constitutional, but that there could be very coherent legal arguments made that would have the possibility of swaying the courts. And, inferring into much leeway you give towards legality if it is legal, than why shouldn't Obama do it?

 

[Denny Crane]

To tell the truth, Im not sure 1) if it would be constitutional and 2) If I would support such a precedent. However, I think you are too quick often to determine based on your personal interpretation of the constitution what is and is not permissible. There are reasons that people become constitutional scholars and spend their lives debating many of theses issues. So much has to do with interpretation and exactly which word you focus on. But seems to me, that at least a decent argument can be made that it would be constitutional for Obama to appoint in these circumstances. Not saying it would be constitutional, but that there could be very coherent legal arguments made that would have the possibility of swaying the courts. And, inferring into much leeway you give towards legality if it is legal, than why shouldn't Obama do it?

There's a reason why no president has tried to trash the constitution like this suggestion.

Obama can recess appoint. Of that there is no doubt. That and the bully pulpit are his two options. Get people to call their senators.

Advice and consent isn't just a constitutional concept. It's a common law concept that goes back centuries before the USA was founded. It is well understood, except by those desperate to get around the constitution.

 

[Denny Crane]

http://www.rollcall.com/news/politics/senators-meeting-garland-face-critics-left-right

The senators are doing their due diligence. Nobody but the senate can impose a rule about time limits. It's not like a veto where the president has X amount of time to veto or the law in question goes into effect.

 

[barfo]

There's a reason why no president has tried to trash the constitution like this suggestion.

Yes, the reason is that no senate has refused to consider a SCOTUS nominee before. So it hasn't come up.

barfo

 

[Denny Crane]

Yes, the reason is that no senate has refused to consider a SCOTUS nominee before. So it hasn't come up.

barfo

Yes it has. Many many times.

The most recent:

https://en.wikipedia.org/wiki/Harriet_Miers_Supreme_Court_nomination

Senate held no hearings, did not vote.

 

[PtldPlatypus]

Yes it has. Many many times.

The most recent:

https://en.wikipedia.org/wiki/Harriet_Miers_Supreme_Court_nomination

Senate held no hearings, did not vote.

From the link, hearings were scheduled, and her nomination was withdrawn before they could occur. How is that even slightly the same thing?

 

[Denny Crane]

From the link, hearings were scheduled, and her nomination was withdrawn before they could occur. How is that even slightly the same thing?

Republican senate, republican president. They gave W the courtesy of a date, but the idea was to force her name to be pulled. See the red text below.

https://www.washingtonpost.com/news...ility-to-consider-a-supreme-court-nomination/

Though the examples are few, they tend to support the right of Republicans to handle — or not handle —this nomination as they wish.

In August 1828, Justice Robert Trimble died just as President John Quincy Adams was battling a tough reelection campaign against Democrat Andrew Jackson. Adams ended up losing to Jackson, but in December nominated Kentucky lawyer John Crittenden to replace Trimble. (Recall that before passage of the 20th Amendment in 1933, the presidential inauguration did not take place until March.)

Supporters of Jackson opposed this lame-duck nomination, leading to a debate of nine days on the floor of the Senate. Supporters of Adams’s maneuver argued that it was a duty of the president to fill vacant slots, even in the waning days of a presidency.

They offered an amendment on the floor:

“That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.”

But this amendment was rejected

in a voice vote and then the Senate voted 23-17 to adopt an amendment saying “that it is not expedient to act upon the nomination of John I. Crittenden.” A few days after becoming president, Jackson nominated John McLean, the Postmaster General under Adams, to replace Trimble. (Jackson did this mainly to get McLean out of the Cabinet and to remove the possibility of him running for president, according to a study of the confirmation process.)

According to the Congressional Research Service, “By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.”

...

During the 1852 campaign between Democrat Franklin Pierce and Whig Winfield Scott, Justice John McKinley died in July. President Millard Fillmore, a Whig who was not running for reelection, nominated three candidates — one in August, one in January and one in February. The Democratic-controlled Senate took no action on two candidates and the third withdrew after the Senate postponed a vote until after inauguration. One of Fillmore’s nominations was never even considered by the Senate, while the other was simply tabled.

...

But it is also clear that politics has always played a role — and the Senate has set the rules to act as it wants. Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination.

In periods of divided government, especially with elections looming, the Senate has chosen not to act — or to create circumstances under which the president’s nominee either withdrew or was not considered.

Indeed, the patterns don’t suggest the Senate used procedures out of constitutional duty, out of deference for what the Constitution says or what previous Senates have done. Instead they used procedures based on the political circumstances of each confirmation.

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

 

[MarAzul]

They have NO good reason to hold up this appointment.

Sure they do. They want someone "Nominated" that will read the Constitution and endeavor to understand the original intent when judging issues before the court.
The Nomination does not become an appointment until after the consent. You know like, If I nominate this person, will you consent to his appointment? (Hint. No answer is an answer.)

No it's your side that's ignoring the constitution.

Not by my reading, they are acting exactly as the Constitution states and will hold out for a nomination that will also follow the Constitution with attention to the original intent.

 

[PtldPlatypus]

It’s matter of opinion whether a refusal to consider a nominee is a dereliction of constitutional duty or walking away from a constitutional responsibility. But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable.

So, the Senate can set whatever rules for themselves they want, but if the Constitutionality of their delay is challenged by the sitting president by appointing a justice without their approval, the validity of his actions will be decided upon by the Supreme Court. Sounds like the checks and balances process in action to me.

 

[MarAzul]

So, the Senate can set whatever rules for themselves they want, but if the Constitutionality of their delay is challenged by the sitting president by appointing a justice without their approval, the validity of his actions will be decided upon by the Supreme Court. Sounds like the checks and balances process in action to me.

Actually, it sounds like an action where the President ignores the Constitution and doesn't give a shit what you think. But then we have seen this sort of action already.

 

[Denny Crane]

So, the Senate can set whatever rules for themselves they want, but if the Constitutionality of their delay is challenged by the sitting president by appointing a justice without their approval, the validity of his actions will be decided upon by the Supreme Court. Sounds like the checks and balances process in action to me.

The president may appoint a justice during senate recess. That is what the constitution allows.

FDR tried to stack the court and was rejected. I think that's about the closest thing to precedent as this unconstitutional proposal is.

 

[PtldPlatypus]

The president may appoint a justice during senate recess. That is what the constitution allows.

FDR tried to stack the court and was rejected. I think that's about the closest thing to precedent as this unconstitutional proposal is.

Thank you Chief Justice Crane. If this suggested action were to actually occur, I'll defer to the actual Supreme Court.

No offense.

 

[Denny Crane]

Thank you Chief Justice Crane. If this suggested action were to actually occur, I'll defer to the actual Supreme Court.

No offense.

My hunch is there's zero chance this will occur. If he does anything but whine about it, he might try a recess appointment.

You can't defer MY hunch to anyone but me.

WashingtonPost gives "this action" being legit:

But the Senate majority can in effect do what it wants – unless it becomes politically uncomfortable. Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.

 

[ehizzy3]

HAHAHAHA nice

 

[Lanny]

PS, if 9/11 was just an attack on every law school in this country would anyone have even cared?

What do you call 100 lawyers chained together at the bottom of the ocean?

A good start.