Posted on 02/14/2016 8:01:06 PM PST by Texas Fossil
Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, "this vacancy should not be filled until we have a new President." Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: "The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons." Conor Friedersdorf says the no-vote stratagem is "illegitimate" because "the Senate does have an obligation to fulfill its "advice and consent" obligation. A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation." Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.
Clinton and Friedersdorf are overlooking the "consent" part of "advice and consent." Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.
Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.
At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.
Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.
We need an Article V Convention, because the federal government is way too powerful. Even if Congress is term limited, the temptation to abuse federal power will be too great for most Senators and Representatives to resist.
But it can and must block the 0bamanation's nominee until the next president; for not to do so threatens the very character and future of the nation. And, of course, the next president, if Clinton or Sanders, will be able to nominate their favorite leftist activist jurist to the SCOTUS.
But as someone pointed out earlier, if the Dems win the Senate this year, they will be sworn in on Jan. 3. Even if a Republican is elected, that person won’t be sworn in for another 17 days, which means that Obama would still be president and could slip a nominee thru to the newly elected Democrat controlled Senate in that time frame.
Yes, but what will Rubio and his gang of apes do?
Congress is made up of Democrats and Republicans. Both parties want a left wing court. Will Congress deny?
Understand fully and agree.
Yes, I know, McCain really sucks.
And yes, he is traitor. ? did I actually say that out loud.
It is fact, Congress “can” (if they choose) change the number of justices. That would end the appointment.
Indeed they can.
They can also deny a President Cruz or President Trump the power to replace Justice Scalia, by filibustering.
Two words: Orren Hatch. We have Kagan and Sotomayor, two completely unqualified people thanks to this smarmy cretin.
thanks for the link, very interesting history.
Senate need not filibuster, they can simply tie it up in committed until Obozo is gone. Obama can nominate, but cannot make a recess appointment.
Yes. And he is one of a number of very loathsome individuals serving in congress. And yes, both justices are unqualified, but were nominated for an agenda, not for qualifications.
The Republicans can do that because they control the Senate. But the filibuster is still in place and the Democrats can keep any Republican nominee from being voted on. It could be that future Supreme Court vacancies are filled only by recess appointments, which would end the lifetime tenure that they now have.
Dems can read this a weep... they wrote this when the shoe was on the other foot....
S.RES. 334. EXPRESSING THE SENSE OF THE SENATE THAT THE PRES. SHOULD NOT MAKE RECESS APPOINTMENTS TO THE SUPREME COURT, EXCEPT TO PREVENT OR END A BREAKDOWN IN THE ADMINISTRATION OF THE COURT’S BUSINESS. KEATING MOTION TO RECOMMIT TO JUDICARY COMM.
https://www.govtrack.us/congress/votes/86-1960/s415
I think the "Traitor of Benghazi" is more accurate but both will work. ;)
A Reasoned Winning Argument for Congress to use the authority they already have concerning approval of nominations to the court.
http://www.chicagotribune.com/news/opinion/commentary/ct-scalia-obama-supreme-court-appointment-republicans-20160215-story.html
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.