Skip to comments.Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing (Delusion)
Posted on 04/11/2016 7:22:46 AM PDT by NRx
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 presidents 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.
I almost hope he would try something that insane. It might be the one ting that could unite a conservative movement that does not appear to be on speaking terms with itself.
Obama can appoint himself Emperor of the Moon.
Who knew there was a expiration date on Advice and Consent
Seems to me the Senate has provided their advice: “we will not consider this nomination until after the election.”
Goodness, you must have faith in the U.S. Republican representatives that their records thus far do not merit.
Didn’t the Court already shoot down this line of sophistry when they canned Obama’s NLRB recess appointments?
Under the 20th Amendment, the new Congress takes office on January 3. The new President does not take office until January 20.
If the Democrats retake the Senate (which appears likely at this point), then it does not matter who is elected President. Senate Majority Leader Chuckie Schumer will have almost three weeks to easily push through on a party line vote all of Obama's nominees, from the Supreme Court to the district courts along with the FEC and any other federal agencies. There will not be a damned thing that the minority Republicans can do to stop it.
Be afraid. Be very afraid.
He has ignored the Constitution for 7+ years, why observe it now? Establishment Republicans would cower in the corner if he even looked at them.
Dear Mr Diskant and WaPo,
Senate advice and consent is not a ‘right’.
It is a POWER.
An appointment can only be made:
by the advice of the Senate
by the consent of the Senate
with the advice of the Senate
with the consent of the Senate
A presidential appointment is impossible except by means of the Senate’s consent, and only if the President action is together WITH the Senate’s consent.
Perhaps, but how long does it take to set up private e-mail servers?
One of who could well be either Barack or Michele Obama for the Supreme Court. Or as Ambassador to the Moon.
What if the four sane (allegedly) justices refused to accept such an illegal appointee? If Roberts just said “...NO, we aren’t going to seat this illegal appointee...” what could Obummer do?
No. In that case, SCOTUS upheld Congress line of sophistry, that it is in session even when the sessions are only pro forma, and only for the purpose of blocking recess appointments.
This case is different, because it asserts that "silence is consent," and does not rely on recess at all.
You are absolutely correct. Nothing in the Constitution requires a Senate hearing or vote. Rather, the Constitution specifically gives each house of Congress the right to make its own rules.
The Senate can sit on any nomination until the nominee grows mold if it so chooses. Just ask any of the Bush judicial nominees that the Senate Democrats refused to ever allow a hearing or a vote.
This is where he really goes off the rails. There is nothing in the constitution to suggest that a "vote" is necessary to withhold consent. Congress' refusal to act is, by definition, a withholding of consent.
The counterargument to that is trivially easy to produce. There is nothing in the constitution to suggest that a "vote" is necessary to grant consent. Congress' refusal to act is, by definition, a granting of consent.
I'm not advocating that position by the way, just pointing out the counterargument. many sunbstantial parts of the constitution have been turned on their head (see Commerce clause for a HUGE body of arguably unconstitutional federal law), and nothing in the constitution is immune to subversion. we have an admitted dual citizen at birth occupying the office of the president, substantial fees and taxes are "not an infringement" of the right to keep and bear arms, the 14th amendment includes a right to abortion and homo marriage, and so on.
And if Obama COULD do this I suspect he’d appoint someone WAAAAAAAY to the Left of Merrick Garland.
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