Posted on 11/17/2016 9:02:12 AM PST by Oldpuppymax
The following article was posted on the Washington Post website, reprinted from the Volokh Conspiracy site on April 11th of this year. With the sudden death of Supreme Court Justice Antonin Scalia came the unnecessary fear that Barack Obama could make a unilateral appointment to the Court—a recess appointment for example. Jonathan Adler explains just how wrong that concern happens to be. Even Mr. Obama’s propensity for ignoring the Constitution—its requirements and limits on his power—will not allow him to summarily place the 5th Marxist on the Court.
For those unfamiliar with Mr. Adler and the Volokh site, please make it a habit to read both as often as possible. They are among the best for news and information concerning court decisions, new and existing law, etc. Also, any summary, analysis or interpretation presented by Mr. Adler will be without peer.
by Jonathan H. Adler
Over the weekend, Gregory Diskant suggested in a Post op-ed that President Obama could unilaterally appoint Judge Merrick Garland to the Supreme Court if the Senate fails to act on his nomination. My co-blogger Ilya Somin has explained why Diskant is mistaken. I would add a few points to Ilya’s critique.
First, the idea that the Senate has an affirmative duty to act in order to reject or “veto” a nomination does not square with the original understanding of the Appointments Clause. As Adam White has explained, the original understanding of the Founders considered, and ultimately rejected, a proposal to require the Senate to affirmatively reject a nomination in order to prevent a confirmation. Moreover, as Chief Justice Marshall noted in Marbury v. Madison, nomination and appointment are separate actions. Under the text of the Appointments Clause, the former is the president’s alone, while the latter is conditioned on Senate action.
Second, consistent practice establishes...
(Excerpt) Read more at thecoachsteam.com ...
Sure, Obama can send him over there. He can clean out the spittoons.
The left will try anything to advance their cause. Then they stand back and ask what are you going to do about it
Wrong.
If the Senate goes into recess for more than 10 days he can and he would serve until the end of the term of that Congress.
The law means nothing to them. Wouldn’t be a shock if they tried some kind of a end run.
With brain-dead McConnell anything is possible.
Here is a synopsis provided by the website Scotusblog.
If a recess nominee were to make it through the screwy Senate rules, it appears he would serve only through the next session of the Senate, not a full term.
Ok, so he would serve until December 2017
If he could’ve, he would’ve by now.....he will lose enough of his so-called legacy forthwith - no sense in making it even worse.
That’s what it looks like.
Even after reading the blog I don’t know, can’t remember what it takes to call the Senate into a do-nothing session.
At any rate a recess appointment could do plenty of damage in a couple months.
So, they could adjourn the Senate on January 21st, and then start a new session. Two can play that stupid game.
I believe that each COTUS serves 1 term divided into 2 sessions. So the end of the first session would be just before Christmas 2017. A “session” is not a “recess”.
Oh, I see, I think.
Congress makes rules, Congress can change rules.
I contend that Obama would not risk his now-tenuous legacy on either an extra-Constitutional SCOTUS appointment or a Hillary pardon. Whatever joy he might receive from a finger in the eye to the Trump supporters, he'll no longer be in position to write the history on either, and can't risk what might yet to be revealed.
Remember Sen. Flake from Ariz wanted to appoint an Obama pick because he was sure Trump was going to lose.
The “rule” was made by the SCOTUS.
Anyway, I agree, Obama wouldn’t do it...... would he?
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