Should President Obama appoint Merrick Garland?

[Mott the Hoople]

What the GOP majority is doing in the Senate is not only foolish but dangerous. By entering partisan electoral venom into the Federal Judicial process they risk the standing and the very institution of our courts being an independent branch of government predicated on the objective governing by the rule of law and not by partisan politics.

Not only that but the Senates use of the pocket veto in refusing to even hold hearings let alone advise and consent (or not consent) is arguably unconstitutional. The veto is not an enumerated power of the legislative branch.

The Constitution is clear. When a SCOTUS seat becomes vacant the President has two rights (to nominate and to appoint) and the Senate has two rights (to advise and to consent/not consent) but what happens if the Senates has waived its rights in this matter?

It's a long standing principle of our government, including congress and the senate that one can waive ones rights. It's also a principle that through inaction one can waive a right by refusing to act in the presence of a duly appointed or elected judicial magistrate.

So the question here is, has the Senate waived its right to "Advise and Consent" to Merrick Garland's nomination?

The Senate has vowed not hold hearings, let alone vote on Garlands appointment when the Constitution requires them too. With that being the case, if given an appropriate amount of time to hold hearings and to advise and consent on Garland's nomination should President Obama simply appoint him on the basis that the Senate has waived its right to advise and consent after a reasonable amount of time, say 90 days?

In principle I think he should. Now this would in no way create a constitutional crises but rather would be cause for healthy constitutional disagreement between two branches of our Government to be adjudicated by an independent branch of Government. The Judiciary.

The Senate would of course file a legal suit against the President on his appointing a SCOTUS Jurist without their advise and consent and the President would counter sue that the Senate had waived that right through inaction.

Obviously such a case would be decided by a 4 to 4 SCOTUS, assuming Garland would recuse himself.

That would essentially be a case where SCOTUS would be adjudicating the very independence of the judiciary or it's subservience to the legislative branch. I don't think it would take a Sooth-Sayer to predict how that would turn out.

 

[Celticguy]

Surely you are not suggesting this politicizing of judicial replacements is new, right ?

 

[Mott the Hoople]

No, not at all. In fact your comment is irrelevant. This isn't about politicizing a judicial appointment. The point is, that the dysfunction of Congress and the Senate has created a logjam in our governments independent judiciary branch by refusing to do it's Constitutional duty to advise and consent on judicial appointments. This is not the same as politicizing the process. The Senate has unilaterally decided there will be no process. They have essentially vetoed any nomination process.

By having the courts determine the Constitutionality of the Senates use of the pocket veto this logjam can be broken and we can be returned to a more sensible form of government.

 

[Leonthecat]

By waiving their duty the senate has also waived their right to have any say in the appointment.
You are absolutely correct. The President should appoint after 90 days. The senate's only recourse would be to file suit, and they will lose.
Brilliant!

 

[Mott the Hoople]

By waiving their duty the senate has also waived their right to have any say in the appointment.
You are absolutely correct. The President should appoint after 90 days. The senate's only recourse would be to file suit, and they will lose.
Brilliant!

That or the prospect of losing would force the Senate to do its duty. Democrats would only need to gain 5 GOP Senate votes to confirm Garlands nomination and given the current state of electoral politics the Dems would probably pick those up and Garland would be confirmed.

In the broader sense I would rather see this go to a court decision as Dems have played the "we won't play ball" game on judicial appointments too. A court decision would set a precedent that inactive for "X" amount of time would be a waiver of their right to advise and consent and that the President can then proceed with his/her appointment. This would force members of the Senate, both Dems and Repubs, to do their duty.

In the long run it would also preserve the Judicial branches independence and shield it from political partisanship. Both would be a good thing.

 

[anatta]

this would be a so called "recess appointment" then ( the only way I can see it being done.

bare in mind "remains in effect, a recess appointment must be approved by the Senate by the end of the next session of Congress"

this isn't a pocket veto. both branches are co-equal in power, and both branches can act or not act.
look at the Constitutional text ( Scalia where are you!)

Article 2 Section 2
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States,

++

these are co=equal powers. both conditions have to be met. there is nothing about times

 

[Celticguy]

Politization is why this is occurring. It's the only relevant point being made. BO needs nothing more than a Senate recess to appoint. The only reason he does nothing is an attempt to, as you boys are, to score points for dems running for senate.
When you try to sound all serious you give yourselves away.

 

[Mott the Hoople]

Well yes it is a pocket veto. By inaction the Senate is vetoing the Presidents nomination. The President and the Senate my be coeval in power but only the executive branch has been enumerated the right of the veto. Not the legislative branch.

You're argument is silly because it wouldn't be a recess appointment as the Senate isn't currently in recess and the Senate currently does not permit more than 3 days of consecutive recess so recess appointments are currently not possible.

If the President believes the Senate is unconstitutionally using a pocket veto to deny a nominee a hearing doesn't that President have the right to have the courts adjudicate such a charge?

 

[Mott the Hoople]

Politization is why this is occurring. It's the only relevant point being made. BO needs nothing more than a Senate recess to appoint. The only reason he does nothing is an attempt to, as you boys are, to score points for dems running for senate.
When you try to sound all serious you give yourselves away.

Recess appointments are only temporary and currently not possible because the GOP leadership has determined that there will currently not be more than three consecutive days or recess making a recess appointment impossible. So that's currently a bogus argument.

My next question. If you disagree on the facts of this case, why do you fear having the courts adjudicate this Constitutional disagreement between the Senate and the Executive branch?

 

[Mott the Hoople]

this would be a so called "recess appointment" then ( the only way I can see it being done.

bare in mind "remains in effect, a recess appointment must be approved by the Senate by the end of the next session of Congress"

this isn't a pocket veto. both branches are co-equal in power, and both branches can act or not act.
look at the Constitutional text ( Scalia where are you!)

Article 2 Section 2
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States,

++

these are co=equal powers. both conditions have to be met. there is nothing about times

But both conditions are not being met. The President has done his duty. The Senate has not. If a period of time goes by and the Senate has not done its duty have they waived their right to advise and consent?

The President may think they have, the Senate would disagree. Why, in that case, shouldn't it be adjudicated by an independent judiciary branch? Isn't this what the judiciary branch is intended to do? Isn't this their function?

Also, how can the Senate stop him? Oh that's right...to stop the President from appointing Merrick Garland they would have to file suit against The President in court, wouldn't they?

 

[Legion Troll]

Even if the Senate refuses to confirm Obama's pick and a Republican wins the White House, there is one way Obama can still get his nominee confirmed.

It could all come down to 17 crucial days in January.

If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.

Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.


Stay on topic, or this thread will be moved to the war zone, where you will find all threads that devolve to back and forth insults.


http://www.nbcnews.com/politics/supreme-court/how-obama-could-win-supreme-court-battle-even-if-republicans-n519121

 

[Mott the Hoople]

Even if the Senate refuses to confirm Obama's pick and a Republican wins the White House, there is one way Obama can still get his nominee confirmed.

It could all come down to 17 crucial days in January.

If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.

Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.


Stay on topic, or this thread will be moved to the war zone, where you will find all threads that devolve to back and forth insults.


http://www.nbcnews.com/politics/supreme-court/how-obama-could-win-supreme-court-battle-even-if-republicans-n519121

Well that would get Garland confirmed but in the long run wouldn't it be better for the nation to determine if the Senates use of the pocket veto to ignore Presidential nominations be considered a waiver of their right to advise and consent to a nomination?

In the long run that would provide an additional barrier to the politicization of the Judicial branch and a bulwark to ensure its independence.

 

[Legion Troll]

Well that would get Garland confirmed but in the long run wouldn't it be better for the nation to determine if the Senates use of the pocket veto to ignore Presidential nominations be considered a waiver of their right to advise and consent to a nomination? In the long run that would provide an additional barrier to the politicization of the Judicial branch and a bulwark to ensure its independence.

Perhaps. Let's see what happens.

What do you think conservatives would be saying if a lame-duck GOP presidents' nominee was refused a hearing by a Democrat-dominated Senate?


Stay on topic, or this thread will be moved to the war zone, where you will find all threads that devolve to back and forth insults.

 

[Leonthecat]

Politization is why this is occurring. It's the only relevant point being made. BO needs nothing more than a Senate recess to appoint. The only reason he does nothing is an attempt to, as you boys are, to score points for dems running for senate.
When you try to sound all serious you give yourselves away.

I would rather see the Democratic party take back the senate majority and Hillary appoint a more liberal SC Justice.
There, I have given myself away, and that's probably what is going to happen.

 

[Mott the Hoople]

Perhaps. Let's see what happens.

What do you think conservatives would be saying if a lame-duck GOP presidents' nominee was refused a hearing by a Democrat-dominated Senate?


Stay on topic, or this thread will be moved to the war zone, where you will find all threads that devolve to back and forth insults.

I think they might consider the same tactic.

 

[Mott the Hoople]

I would rather see the Democratic party take back the senate majority and Hillary appoint a more liberal SC Justice.
There, I have given myself away, and that's probably what is going to happen.

I'd rather see the independence of the Judiciary branch preserved and a return to functional government.

A specific appointment now may or may not change the balance of the courts ideology but in the long term that is not nearly as important as the principle of preserving the courts independence as a third and equal branch of government independent of the political process.

 

[PostmodernProphet]

The point is, that the dysfunction of Congress and the Senate has created a logjam in our governments independent judiciary branch by refusing to do it's Constitutional duty to advise and consent on judicial appointments. .

there is no dysfunction......its part of the check's and balances system.......the check in place is a simple "no"........

 

[PostmodernProphet]

Perhaps. Let's see what happens.

What do you think conservatives would be saying if a lame-duck GOP presidents' nominee was refused a hearing by a Democrat-dominated Senate?

probably the same ineffective things the Dems are saying now.......

 

[Mott the Hoople]

there is no dysfunction......its part of the check's and balances system.......the check in place is a simple "no"........

No it is not. It has been a "nothing..no action...inactivity".

So if a reasonable amount of time goes by and the Senate does nothing what's to prevent The President from appointing Garland on the basis that the Senate has waived its right to advise and consent?

 

[PostmodernProphet]

No it is not. It has been a "nothing..no action...inactivity".

So if a reasonable amount of time goes by and the Senate does nothing what's to prevent The President from appointing Garland on the basis that the Senate has waived its right to advise and consent?

the law.....to advise and consent does not mean they have to consent......saying "hell, no" also fits the definition.......