Posted on 04/09/2016 5:24:24 PM PDT by Kaslin
You're beginning to hear this legal theory more and more as it becomes clear the Senate has no intention of taking up the nomination of Merrick Garland to the Supreme Court.
Does President Obama have the power to appoint a justice of the Supreme Court without getting the Senate's approval? The legal theory rests on an ambiguity in the Constitution and some legal sleight of hand.
Gregory L. Diskant, a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause, penned an op-ed in The Washington Post explaining the theory:
The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?
In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.
It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”
It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.
Are the power to nominate and the power to appoint two separate powers? Sounds dubious to me, but then, I'm not looking to trash the Constitution and set a dangerous precedent by appointing a justice without Senate approval.
In practical terms, how would this "appointment" work?
The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.
The Founders never intended that a president have the power to simply appoint a judge to the high court without Senate approval. That much should be clear, even to an ultra-liberal lawyer like Diskant. But given the lack of respect for the Constitution by this president and liberals in general, I wouldn't put it past him.
Do the "spirit" of the Constitution and intent of those who wrote it mean anything anymore?
The problem with your method is that the Republican Senators, are like the town slut. Give her a drink and she will “give it up”. If the Puklicans get in front of Obama, he will offer them a “road pop” or two, and roll them like the local harlot.
It’s suspicious that the Washington Post didn’t also refer to the related Clause 3 of the referenced Section. Here’s Clause 2 & 3 of Section 2 of Article II:
Clause 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of the next Senate session.
What I’m seeing with Clause 3 is that a justice appointed to fill a vacancy during a Senate Recess does not have the job until they decide to retire, the job actually expiring at the end of the next Session.
Also, the Constitution doesn’t define what a session is. But historical records show that a session can be as short as a day. So even if Obama appoints Garland during a Senate recess, the Senate evidently only needs to change its schedule a little to restart the justice nomination and consent process.
"The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty."
Also, regarding the argument that the Senate fails to perform its constitutional duty to give or withhold its consent, historically there are several examples when it took more than a year for a vacancy on the Supreme Court to be filled.
Long Supreme Court vacancies used to be more common
So what am I overlooking?
Got that right.
Rule 556 to be applied soon.
Reminds me of Buzz the American dictator in the Lewis Sinclaire book: “it cannot happen here”
Congress can always change the number of justices--so in theory if they were to reduce the total to 8 there would be nothing Obama could do about it. (I'm not sure if he would have a chance to veto a change--of course a veto can be overridden--or if he has no say at all.)
ComDem Insanity.
BUT
The Congress can simply disapprove the appointment. End of story.
Find you balls Congress. Act. Deny the appointment.
You mean the deranged Cruzers...
All Congress has to do is vote that the Supreme court has 8 memebers. And then it does. No appointment needed.
Original time of assembly of Congress stated in the Constitution:
http://www.archives.gov/exhibits/charters/constitution_transcript.html
“The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”
As per- AMENDMENT XX
Passed by Congress March 2, 1932. Ratified January 23, 1933.
http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html#20
“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”
The GOP will confirm Garland after the primaries and Trump gets the nom. It will just make Trumpers even madder at DC and give cover to the Senate RINOs who want it. Win, win for them.
No it isn’t a sound argument.
“In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?
It doesn’t say anything about “seeking” and it also doesn’t say “must seek”. Why are they adding words and meaning to the constitution that aren’t there?
To make their phony point, that’s why.
(the president) “.......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,.....”
The governing word here is “CONSENT”. “With consent” from the Senate. The implied “must” here is the word “with”.
In other words, The president MUST get CONSENT from the Senate, PERIOD! There is no ambiguity here. He has to WAIT for “consent” before he can appoint. The constitution sets no time limit.
The controlling authority here is with the Senate. The president puts a name in nomination, a proposal, nothing more. The Senate makes the actual decision. Then the president does the “formality” (nothing more than that) of making the appointment.
The jerk in the article acts like the Senate’s job here is just some minor something that happens in between the important parts the president does. It’s just the opposite. The Senate makes the actual decision while the president carries out formalities.
All I can say is, good luck with that Obama.
What happens if he appoints without consent?
Nothing
He’ll try it.
Thanks.
Etymology of names is an interest of mine.
“Treble”, eh? Fairly unusual.
Uh... no. He can’t.
The Senate does not operate with ‘rights’.
It operates with ‘powers’.
Any appointment must be ‘by and with the advice and consent’ of the Senate.
Two compounds: (1) by and with (2) advice and consent
That means the president must appoint
‘by..the advice...of the Senate’
‘by...the consent...of the Senate’
‘with...the advice...of the Senate’
‘with...the consent...of the Senate’
That’s really a sticky wicket for anyone wanting a president to try to appoint a judge on his own.
It would be an INEFFECTIVE appointment, not just an illegal appointment. IOW, it would not be real on its face.
By = by means of
With = united with
“By means of the consent of the Senate” pretty well locks this up against a predatory president. It means specifically the opposite of the argument being used about ‘not exercising their option’.
It means that the president is not the ruling factor. It means the Senate is given the upper hand. IOW, the Senate ‘gives permission’ to appoint. “With the consent’ says that the Senate must demonstrate their permission by being alongside the president, agreeing to the appointment.
“You mean the deranged Cruzers...”
Keep telling yourself that.
If he did place him on the court, every demoncRAT president from now on will simply place his leftist pick without even bothering with the Senate. . .we are lost, we are lost if we don’t do everything we can to stop the SCOTUS from becoming a demoncRAT safe haven.
As much as I've been praying for that very thing to happen for more than 20 years now, I've come to the realization that with rare exception, American's have become fat, lazy, and frankly too big of PUSSIES to even consider doing that which desperately needs to be done in this country.
I am ashamed of my generation for allowing all that's happened to destroy this country seemingly without a single shred of resistance.
accepting the appointment would be dangerous for the health of the appointee
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