Should President Obama appoint Merrick Garland?

I Love America said:
I had to stop reading after the first sentence. Obama doesn't even want Merrick and you know it.
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No I don't. Actually that would be almost beside the point. The point would be to establish a precedent that if the Senate, regardless of which party is in control, does not act and do not have the constitutional right to a pocket veto that they would either be required to advise and consent the nominee in an appropriate amount of time or they would waive their right to advise and consent. Which is perfectly constitutional.
 
PostmodernProphet said:
nobody would have to.....Obama would never find anyone stupid enough to swear the guy in as a SC justice and give him a key to an office........
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It would never get that far, Ass Pimple...
By appointing, Obama would force the Senate to hold hearings...
They would look like the fools that they are...
LMAO
 
Leonthecat said:
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!
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If Obama does that he will set a very dangerous precedent and I believe he would lose if sued. Also, it would ruin any credibility Garland has on the bench.

You need to think things through more Runesock.
 
The GOP is being stupid on this. Have the hearings and then vote him down if they don't want him. Stop acting like little children who didn't get the cookie they wanted for desert.
 
PostmodernProphet said:
appointing him would not force the Senate to hold hearings......
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yes. the POTUS cannot "force" the Senate to do anything . Further by appointing
( not nominating -but actual appointment by passing the Senate's advise and consent) means the appointment is not Constitutionally binding..

This is all interesting but completely hypothetical;
if POTUS did anything more then simple nomination he/she would by immediately impeached for abuse of power, and violating oath of office
 
anatta said:
yes. the POTUS cannot "force" the Senate to do anything . Further by appointing
( not nominating -but actual appointment by passing the Senate's advise and consent) means the appointment is not Constitutionally binding..

This is all interesting but completely hypothetical;
if POTUS did anything more then simple nomination he/she would by immediately impeached for abuse of power, and violating oath of office
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That might happen, but by the time an actual impeachment would happen, he would be out of office and therefore moot, right?
 
Mott the Hoople said:
No I don't. Actually that would be almost beside the point. The point would be to establish a precedent that if the Senate, regardless of which party is in control, does not act and do not have the constitutional right to a pocket veto that they would either be required to advise and consent the nominee in an appropriate amount of time or they would waive their right to advise and consent. Which is perfectly constitutional.
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It's the Senate's Constitutional DUTY to 'advise and consent', not a "right" and it cannot be waived. Nor can POTUS force any time frame.
It's one of those things the founders assumed that Constitutional officers would do their duties of Office.

Suppose the POTUS refused to nominate for a vacancy? Can the Senate advise and consent someone anyhow?
No. Both parties must fulfill their role.
If the Senate simply refuses to act year after year I suppose recourse would then be removal from office
but since it's a collective responsibility, removal would depend on voters. It's assumed the people ( ultimate holder of all powers)
would punish gross dereliction of duties by using the power of the vote to remove members of non-functional bodys.

Likewise if the POTUS continued to never nominate - the people would remove him.
The Congress can't impeach because there is no timeline to fulfill, but the voters can remove..
I do not see how the courts can force anyone to do their duty - because there is no timeline.

Impeachment is only for commissions of abuse of power ,not dereliction -because there is no expressed dereliction by time.
 
Konono said:
That might happen, but by the time an actual impeachment would happen, he would be out of office and therefore moot, right?
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That's silly talk. There's no impeachable offense for POTUS having a different view of the Constitution than the partisan leaders of the Senate. That would be a legal question for the judiciary to decide if that were to happen. Even if the Senate were to attempt to try impeachment proceedings on partisans political grounds it would be lala fantasy land crap as they simply don't have the votes.
 
Konono said:
If Obama does that he will set a very dangerous precedent and I believe he would lose if sued. Also, it would ruin any credibility Garland has on the bench.

You need to think things through more Runesock.
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How would Obama be setting a dangerous precedent? He would only be making a constitutional legal claim that the Senate had waived its constitutional right to advise and consent. If the Senate disagreed they can file suit and the Judiciary would decide. Why are you afraid of an independent judiciary making a decision on such a case?
 
anatta said:
yes. the POTUS cannot "force" the Senate to do anything . Further by appointing
( not nominating -but actual appointment by passing the Senate's advise and consent) means the appointment is not Constitutionally binding..

This is all interesting but completely hypothetical;
if POTUS did anything more then simple nomination he/she would by immediately impeached for abuse of power, and violating oath of office
Click to expand...
You need to read the Constitution again. POTUS has the Constitutional right to both nominate and appoint a SCOTUS Jusdice. Is there something about this you don't understand? You're argument on impeachment is ridiculous. Congress can only impeach a President for a high crime or misdemeanor. No such thing would have occurred if the POTUS has upheld his Constitutional duty and right. So you can take the impeachment fantasy land stuff off the table.

What are you afraid of by having an independent Judiciary make a decision on a valid Constitutional dispute between The executive branch and the legislative branch? Is this not the role of an independent judiciary as outlined by the Constitution?
 
anatta said:
It's the Senate's Constitutional DUTY to 'advise and consent', not a "right" and it cannot be waived. Nor can POTUS force any time frame.
It's one of those things the founders assumed that Constitutional officers would do their duties of Office.

Suppose the POTUS refused to nominate for a vacancy? Can the Senate advise and consent someone anyhow?
No. Both parties must fulfill their role.
If the Senate simply refuses to act year after year I suppose recourse would then be removal from office
but since it's a collective responsibility, removal would depend on voters. It's assumed the people ( ultimate holder of all powers)
would punish gross dereliction of duties by using the power of the vote to remove members of non-functional bodys.

Likewise if the POTUS continued to never nominate - the people would remove him.
The Congress can't impeach because there is no timeline to fulfill, but the voters can remove..
I do not see how the courts can force anyone to do their duty - because there is no timeline.

Impeachment is only for commissions of abuse of power ,not dereliction -because there is no expressed dereliction by time.
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That's an "opinion" on your part. There is a well established precedent that Constitutional rights can be waived by inaction. Not only that but what the Senate is doing amounts to an unconstitutional pocket veto and the Senate has no right to veto a Presidential nomination.

Since this is a legal question between the executive and legislative branch why are you afraid to have an independent judiciary adjudicate this legal question? POTUS would be on solid legal ground, according to legal precedent, that by failing to fulfill it's role to advise and consent that they have waived their right to advise and consent. Ego, your argument has no merit.
 
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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Why do you seem to be forgetting one itty-bitty part of that and it would be the "with the advice and consent of the Senate" section??
 
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