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 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.’ ”
> ote 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 absolute nonsense. Claiming that the “president must seek [] the consent of the senate” is an outright blatant lie. The President must HAVE the consent of the Senate.
He is out of his cotton picking mind.
> 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.
More garbage. The Senate has not consented, there is no requirement that they provide hearings for any nominee in order to make their determination.
Yes and no. NLRB v. Noel Canning, was a 9-0 opinion against the 0bama regime. He could not even get Kagan and the wise latina to vote for him. But while the court struck the NLRB recess appointments in that case, they did note how the administration can get around it if the Senate lets them. The case is also a road map for the Senate on how to "stay in session" to avoid the recess appointment.
By the way, I believe that Garland was specifically selected by 0bama because of the Court decision in Noel Canning. Garland's decisions show a deference to government authority bordering on being a judicial "rubber stamp" for any executive action. Exactly the sort of Justice 0bama or Hillary Clinton is looking for.
This doesn't respond to the argument at all. Consent is an affirmative act and MUST be manifested in some manner. Thus failing to vote, or act in any way, in no way imaginable could be considered an affirmative manifestation of consent. To the contrary, withholding such an affirmative manifestation is a denial of consent - by definition.
Damn I hope it’s a moon in a different galaxy.
The response was an airtight rebuttal. Nothing in the constitution defines consent the way you have defined it. The constitution does not say "advise and affirmative act of consent," as you imply.
In the law, consent can be implied. See "implied consent."
Again, I'm not advocating this position, merely pointing out that nothing in the law is certain or durable. It (the law) changes to fit the moment and the desired outcome.
Obama can recess appoint him like Ike did Brennan
Brennan stayed
Obamas could likely be temporary
Con law 101 says that words shall be given their natural and usual definition. This has been affirmed by the Court many times. The word Consent by definition is an affirmative act and should be interpreted as such in any act of constitutional interpretation. Thus, refusing to provide consent by refusing to vote, or otherwise, is a withholding of consents. There is no case law or rational argument to be made whatsoever that refusing to manifest consent can be implied as an act of consent - that is a total absurdity.
The court is not bound to follow that principle. See Obamacare decisions.
The rest of your argument is just repetetive of the ordinary usage, but it is true in ordinary practice that silence can work as consent. If the Senate objects to the nominee, it can vote the nominee down.
Another way to look at the question is as one of shifting the presumption. The current presumption is that the nominee is rejected unless approved. Just switch the presumption to the reverse.
The vote is a good example, actually. Your refusal to vote does not relieve you of whatever obligations the government imposes on you. Vote (consent) or not, you are bound.
-- There is no case law or rational argument to be made whatsoever that refusing to manifest consent can be implied as an act of consent - that is a total absurdity. --
The law is not obliged to be rational, nor is obliged to avoid imposing absurdities.
Then the Court could just hold that not voting to approve is the same as voting not to approve. And find that the Senate has voted to reject the nominee. He has already been voted down.
Yes, that's another possibility, and it reflects the practice of the government since the time it was formed.
Congress and the courts are so far removed from ordinary use of words, and are so inconsistent, and often times blatantly dishonest, that it is naive to think that there is really any force that binds them to a particular course of action.
This guy’s an idiot. No. He can’t. He can do an interim if the Senate is in recess but that’s it.
What moron wrote this article? This is as stupid as the one where the guy said a dead Scalia could still vote.
[[If the Democrats retake the Senate (which appears likely at this point),]]
With the mood of the country being so angry at democrats right now- especially at she who’s name can’t be mentioned- I’m not sure it does appear likely- perhaps I’m wrong- but we’re seeing a very angry America right now
Let’s just hope your scenario doesn’t happen- I’ve got a freakin ulcer the size of Kansas this election season!
I say yes. The Bamster appointed several social justice warriors without the consent of the senate.
His supposed reason today would be different from Noel Canning, but his actions would be identical. Consent to nominations is just about the last real power retained by the senate.
Should Obama appoint without the consent of the senate, he could expect . . . a fawning letter from McConnell.
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