Should President Obama appoint Merrick Garland?

Mott the Hoople said:
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.

?
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I wasn't calling it a recess appointment..i'm trying to see ho it could happen -and I agree a recess appointment isn't apropos here.

But neither is this a so called "pocket veto". The legislative branch doesn't have veto powers - it only has the advise and consent.
Executive branch only has veto powers. we agree on that then? then why is this next statement of yours referring to the legislative veto?

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
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^ that is nonsensical , your argument conflicts itself i.e. "but only the executive branch has been enumerated the right of the veto. Not the legislative branch"
there is no Seante veto powers at all -by definition or in practice ..drop that whole line of debate
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The answer here is the Senate doesn't have a Constitutional duty to act within any time frame - it has the duty, but unbound by time
 
anatta said:
I wasn't calling it a recess appointment..i'm trying to see ho it could happen -and I agree a recess appointment isn't apropos here.

But neither is this a so called "pocket veto". The legislative branch doesn't have veto powers - it only has the advise and consent.
Executive branch only has veto powers. we agree on that then? then why is this next statement of yours referring to the legislative veto?

^ that is nonsensical , your argument conflicts itself i.e. "but only the executive branch has been enumerated the right of the veto. Not the legislative branch"
there is no Seante veto powers at all -by definition or in practice ..drop that whole line of debate
++
The answer here is the Senate doesn't have a Constitutional duty to act within any time frame - it has the duty, but unbound by time
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You're missing the point. I'm making a reasonable argument and you disagree with that argument. Who gets to adjudicate that argument if its between the President and the Senate?
 
Mott the Hoople said:
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?
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There is no disagreement. BOs choices are clear and limited. He can do what he wants but it won't matter to scotus.
 
Celticguy said:
There is no disagreement. BOs choices are clear and limited. He can do what he wants but it won't matter to scotus.
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The President's choices are indeed limited. He has the right to nominate and appoint.

So what happens if the President decides that the Senates inaction is a waiver on their right to advise and consent and the Senate disagrees? Who gets to adjudicate that disagreement on the law?
 
Mott the Hoople said:
You're missing the point. I'm making a reasonable argument and you disagree with that argument. Who gets to adjudicate that argument if its between the President and the Senate?
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I'm trying.. :) really I'm no trying to be argumentative for the sake of it.

there are 2 independent actions that need to happen -BUT there is no time frame binding those independent actions together.
There is (obviously) nothing in the Constitution about time frame. Only the duties of the executive and Senate.
So there is nothing to "adjudicate".

I suppose it would come down to politics ( guessing here) -throw out the "do nothing Senate"if it never acts on a POTUS
appointment?

Frankly the scenario whereby a nomination is never acted on hasn't ever happened.
I'm sure there have been cases of a nominee not getting 'heard' within POTUS term..

In which case the new POTUS can affirm or replace the nominee..this is pretty esoteric, but from what I know
it would have to shake out like that -there is no other party who can force Senate advise and consent
 
anatta said:
I'm trying.. :) really I'm no trying to be argumentative for the sake of it.

there are 2 independent actions that need to happen -BUT there is no time frame binding those independent actions together.
There is (obviously) nothing in the Constitution about time frame. Only the duties of the executive and Senate.
So there is nothing to "adjudicate".

I suppose it would come down to politics ( guessing here) -throw out the "do nothing Senate"if it never acts on a POTUS
appointment?

Frankly the scenario whereby a nomination is never acted on hasn't ever happened.
I'm sure there have been cases of a nominee not getting 'heard' within POTUS term..

In which case the new POTUS can affirm or replace the nominee..this is pretty esoteric, but from what I know
it would have to shake out like that -there is no other party who can force Senate advise and consent
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You have still failed to address my point. Which is, if the President decides that the Senate has waived it's right to advise and consent on this appointment and moves forward and appoints Garland and the Senate disagrees how does the Senate stop the President?

Actually there hasn't. Nominations have been pulled in the past because the advise of the Senate is that the nominee was unsuitable but never has the Senate refused to have hearings on any nominee a President would propose were in new waters here.
 
Mott the Hoople said:
You have still failed to address my point. Which is, if the President decides that the Senate has waived it's right to advise and consent on this appointment and moves forward and appoints Garland and the Senate disagrees how does the Senate stop the President?
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in that case it would be unconstitutional ( no advise and consent) to appoint and seat the jurist. I imagine the chief Justice would not administer oathe of office.
If it was administered by some one else (Chief Justice is tradition -not legal) then the new jurist would be impeached by the Congress.
Also the POTUS might be impeached.
 
anatta said:
in that case it would be unconstitutional ( no advise and consent) to appoint and seat the jurist. I imagine the chief Justice would not administer oathe of office.
If it was administered by some one else (Chief Justice is tradition -not legal) then the new jurist would be impeached by the Congress.
Also the POTUS might be impeached.
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Who decides if it's unconstitutional? A Chief Justice doesn't get to do that unilaterally. There is nothing in the Constitution that says the Chief Justice has to swear in a fellow Justice.

As for impeachment that's not going to happen. Neither the Senate or the House have enough Republican votes to make that a likely outcome.
 
Mott the Hoople said:
Who decides if it's unconstitutional? A Chief Justice doesn't get to do that unilaterally. There is nothing in the Constitution that says the Chief Justice has to swear in a fellow Justice.

As for impeachment that's not going to happen. Neither the Senate or the House have enough Republican votes to make that a likely outcome.
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The House of Representatives/Senate (google) would impeach the improperly seated jurist. That is a trial, and the results of the trial would stand.

The Chief Justice would ( probable) decline to administer the oathe of office -yes there are others that could do that -but that leads
to a renegade POTUS -who would also be impeached. In practice if a POTUS tried to seat a jurist who wasn't under 'advice and consent' -the POTUS
would immediately be impeached themselves.
 
anatta said:
The House of Representatives/Senate (google) would impeach the improperly seated jurist. That is a trial, and the results of the trial would stand.

The Chief Justice would ( probable) decline to administer the oathe of office -yes there are others that could do that -but that leads
to a renegade POTUS -who would also be impeached. In practice if a POTUS tried to seat a jurist who wasn't under 'advice and consent' -the POTUS
would immediately be impeached themselves.
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That's nonsense. Impeachment is reserved exclusively for the legislative branch for high crimes and misdemeanors. What high crimes and misdemeanors have occurred? None. We're talking about a disagreement on the interpretation of law between the Executive branch and the Legislative branch. Secondly, as I stated, the Repubicans in congress do not have the required number of votes to initiate impeachment proceedings on what a legal and political dispute between the two branches of government. So that's just fantasy land stuff.

The facts are the only viable legal recourse the Senate would have would be to file suit against the President in a Federal court. Why do you fear this? Isn't this the purpose of our courts?

Why the dancing on the head of a pin to state the obvious? That the Judicial branch would resolve this dispute and that filling a legal suit against the President would be the Senates only viable option in this scenario.
 
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Mott the Hoople said:
That's nonsense. Impeachment is reserved exclusively for the legislative branch for high crimes and misdemeanors. What high crimes and misdemeanors have occurred? None. We're talking about a disagreement on the interpretation of law between the Executive branch and the
Legislative branch. Secondly, as I stated, the Repubicans in congress do not have the required number of votes to initiate impeachment proceedings. So that's just fantasy land stuff.

The facts are the only viable legal recourse the Senate would have would be to file suit against the President in a Federal court. Why do you fear this? Isn't this the purpose of our courts?

Why the dancing on the head of a pin to state the obvious? That the Judicial branch would resolve this dispute and that filling a legal suit against the President would be the Senates only viable option in this scenario.
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would not an extra-Constitutional appointment by POTUS of a SCOTUS justice not subject to advise and consent be a high crime??

Why would the Senate use the courts? It's not "fear". in that scenario the POTUS would be committing an act against upholding the Constitution -
not some Bill Clinton "lieing" under oathe - but a full frontal assault on the separation of powers; violation of his oathe of Office.

You are all over the place with your argument - please use the exact terms.
For ex. = nomination of a SCOTUS judge is not the same as an appointment.
There is no "vetos" being used here by anyone -pocket or otherwise.

It most certainly would lead to impeachment ( and conviction) of the POTUS who attempted to bypass the Senate's advise and consent.
It wouldn't just be Republicans -many Dems would also join in if POTUS were to force appointment ( not nomination -appointment).

I see no reason for the courts involvement on any level -
when the Legislative has the enumerated powers to impeach a POTUS whom would so grossly bypass Constitutional requirements toward SCOTUS office.
 
Mott the Hoople said:
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.
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I had to stop reading after the first sentence. Obama doesn't even want Merrick and you know it.
 
Mott the Hoople said:
That's nonsense. Impeachment is reserved exclusively for the legislative branch for high crimes and misdemeanors. What high crimes and misdemeanors have occurred? None. We're talking about a disagreement on the interpretation of law between the Executive branch and the Legislative branch. Secondly, as I stated, the Repubicans in congress do not have the required number of votes to initiate impeachment proceedings on what a legal and political dispute between the two branches of government. So that's just fantasy land stuff.

The facts are the only viable legal recourse the Senate would have would be to file suit against the President in a Federal court. Why do you fear this? Isn't this the purpose of our courts?

Why the dancing on the head of a pin to state the obvious? That the Judicial branch would resolve this dispute and that filling a legal suit against the President would be the Senates only viable option in this scenario.
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actually that isn't nonsense.....if the SC didn't actually toss him out of the building the first time he tried to sit down that is precisely what would happen......
 
PostmodernProphet said:
actually that isn't nonsense.....if the SC didn't actually toss him out of the building the first time he tried to sit down that is precisely what would happen......
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How. What high crime or misdemeanor would have been committed? The President has a constitutional right to appoint a SCOTUS nominee. His claim in the argument would be that the Senate had waived their right to advise and consent. How would that be a high crime or misdemeanor?
 
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