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  #151  
Old 06-04-2019, 03:08 PM
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The one-Senator quorum that the Republicans used was Mitch McConnell. The Constitution does not state that the President Pro Tem of the Senate gets to decide whether to approve a nominee; it says that the Senate as a whole gets to decide it. If McConnell can decide on his own, on behalf of the entire Senate, to not approve of a nominee, then he's acting as a quorum of one.

As for how the President of the Senate would call a vote, he'd do it the same way that the President Pro Tem does. He's the President. He presides. That's what a President, by definition, does. The President Pro Tem doesn't even have any power at all, except in the President's absence.
  #152  
Old 06-04-2019, 03:46 PM
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"wish granted" - Senator Mitch McConnell, 2016, probably
It really helps to read your own cites before you post them, yanno?
  #153  
Old 06-04-2019, 05:01 PM
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The one-Senator quorum that the Republicans used was Mitch McConnell. The Constitution does not state that the President Pro Tem of the Senate gets to decide whether to approve a nominee; it says that the Senate as a whole gets to decide it. If McConnell can decide on his own, on behalf of the entire Senate, to not approve of a nominee, then he's acting as a quorum of one.

As for how the President of the Senate would call a vote, he'd do it the same way that the President Pro Tem does. He's the President. He presides. That's what a President, by definition, does. The President Pro Tem doesn't even have any power at all, except in the President's absence.
This is simply false. The (Senate) President has almost no power at all. Did you read the link?
  #154  
Old 06-04-2019, 05:09 PM
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The Senate President, by definition, has the power to preside over the Senate. The Wikipedia page you cite says so, too, so I'm not sure what point you're making.
  #155  
Old 06-04-2019, 05:18 PM
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To be fair, that's debatable.

Seems that that could be fixed just by laws: the laws regarding national emergencies ultimately forced the Senate to cast a vote over Trump's border national emergency. Presumably the next time the Dems have a trifecta, they can pass some laws requiring up-or-down votes on Presidential nominees, judicial or otherwise, with the nominees taking office if a vote isn't held within X calendar days.
It's easy enough to design the system to fail closed: if the Senate refuses to hold a vote, the candidate is automatically instated.
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  #156  
Old 06-04-2019, 05:23 PM
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Unserious is also bathing in unicorn tears. [Snip.] You know, win elections.
Obama won an election to the presidency, which under the Constitution comes with the power to appoint Supreme Court justices, with no proviso or limit that the President can't do so in the last year of office. However, one Senator pulled a rule out of his turtle shell that the President doesn't have that power for the last year of his term.

Except that same Senator has recently smiled, sipped Granny's peach tea, and admitted to guffaws of laughter from his supporters that he would allow a vote on a justice appointed in the fourth year of the President's term ... when that President is Trump and not Obama.

That kind of unserious. Joker-ish levels of unserious.
  #157  
Old 06-04-2019, 05:30 PM
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The Senate President, by definition, has the power to preside over the Senate. The Wikipedia page you cite says so, too, so I'm not sure what point you're making.
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The vice president, as President of the Senate, has the authority (ex officio, for he or she is not an elected member of the Senate) to cast a tie-breaking vote. Other than this, the rules of the Senate grant its president very little power (in contrast to the powerful office of Speaker of the House of Representatives).
In fact the Senate President doesn't even have the liberty to address the Senate, unless it's granted by unanimous consent.

https://www.senate.gov/artandhistory...ro_Tempore.htm

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  #158  
Old 06-04-2019, 05:35 PM
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Obama won an election to the presidency, which under the Constitution comes with the power to appoint Supreme Court justices, with no proviso or limit that the President can't do so in the last year of office. However, one Senator pulled a rule out of his turtle shell that the President doesn't have that power for the last year of his term.

Except that same Senator has recently smiled, sipped Granny's peach tea, and admitted to guffaws of laughter from his supporters that he would allow a vote on a justice appointed in the fourth year of the President's term ... when that President is Trump and not Obama.

That kind of unserious. Joker-ish levels of unserious.
All true, and despicable, deplorable and more. The Republican rule of ethics and alleged dignity here asks: "Is it illegal? Has anyone specifically codified this? Then fuck it, we're good."
  #159  
Old 06-04-2019, 05:51 PM
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Obama won an election to the presidency, which under the Constitution comes with the power to appoint Supreme Court justices, with no proviso or limit that the President can't do so in the last year of office.
The “proviso or limit” is that he can only do it with the consent of enough Senators. And, if he doesn’t get that consent in the last year of office, then he can’t do so. So if Obama doesn’t actually get that consent in his last year of office, but Trump actually does, well, then — what? Why should it matter that the guy mentioning this is sipping tea while just sort of being accurate about stuff?
  #160  
Old 06-04-2019, 06:21 PM
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The “proviso or limit” is that he can only do it with the consent of enough Senators. And, if he doesn’t get that consent in the last year of office, then he can’t do so. So if Obama doesn’t actually get that consent in his last year of office, but Trump actually does, well, then — what? Why should it matter that the guy mentioning this is sipping tea while just sort of being accurate about stuff?
Because he didn't try to rely on a naked "you can't make the Senate advise and consent" but came up with his last-year rule as a fig-leaf, and now is throwing that flimsy cover away when he feels he doesn't need it anymore.

He can, constitutionally, be a hypocrite, and I can, constitutionally, call him one.
  #161  
Old 06-04-2019, 06:36 PM
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Also, I was responding to the facile "suggestion" to win elections. It doesn't do quite as much good when one party is willing to ignore long-time political norms and obstruct the opposing party enemy to the limits not of the Constitutional text but what they feel the Supremes won't review under the political-question doctrine.
  #162  
Old 06-04-2019, 06:40 PM
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All kinds of Republican liars went on the Sunday shows spewing their "just not in the last year" bullshit. Not a one of them had the guts to say "fuck you, we're just not going to do it, and it's not against the law". Why were they so afraid that they had to make up bull-fucking-shit for the Sunday shows? I know, because they knew they had thrown honor and dignity to the curb.

Last edited by bobot; 06-04-2019 at 06:42 PM.
  #163  
Old 06-04-2019, 07:08 PM
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...I'm not sure if you would leave that possibility open under the guise of 'try anything'.
You should get to know us better, then you would not suffer such dread. We of the left are, for the most part, sane and reasonable people. Except for Berkeley, perhaps.

And I can't help but notice that despite the bountiful acrid insights you offer in criticism of those who really, really don't like Mitch...you don't really so much defend him as assault us.

The press of time, perhaps? You were too busy to outline all the splendid examples he has shown us, in terms of compromise and mutual accord. So very refreshing after the iron fist of Obama! Now that the stifling standards are set aside, the outdated "rules" as flexible as over-cooked spaghetti.

I am left to believe that you dislike his enemies so much, you are inclined to be generous about his failings? Or is it that his splendid triumphs are too numerous? Certainly he has given great support and comfort to Donald, of House Harkonnen, Worst of his Name.... So, there's that.
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  #164  
Old 06-04-2019, 07:43 PM
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Originally Posted by John Bredin View Post
Obama won an election to the presidency, which under the Constitution comes with the power to appoint Supreme Court justices, with no proviso or limit that the President can't do so in the last year of office. However, one Senator pulled a rule out of his turtle shell that the President doesn't have that power for the last year of his term.

...
Obama won the power to nominate judges. Senator McConnell (and the Senate Republicans collectively) won the power to confirm them or not. Nobody prevented Obama from using his power to nominate. He did. He was just unhappy when the Senate decided to decline to provide their advice and consent and confirm his nominee. That is the Senate's prerogative, upsetting as some of you found it.

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  #165  
Old 06-04-2019, 07:50 PM
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It's awesome that you speak of it like it's just one of those things that happens. When in American history has it happened before?
  #166  
Old 06-04-2019, 08:06 PM
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It's awesome that you speak of it like it's just one of those things that happens. When in American history has it happened before?
A few times but mostly over a hundred years ago, iirc.

Last edited by CarnalK; 06-04-2019 at 08:06 PM.
  #167  
Old 06-04-2019, 08:07 PM
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It's awesome that you speak of it like it's just one of those things that happens. When in American history has it happened before?
How does whether or it happened before or not affect the validity of the argument?
  #168  
Old 06-04-2019, 08:08 PM
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A few times but mostly over a hundred years ago, iirc.
No really, I mean when? If you don't have an answer, give Ditka a few minutes to google something. I was asking him.
  #169  
Old 06-04-2019, 08:10 PM
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How does whether or it happened before or not affect the validity of the argument?
Because that would show that is not just one of those things that happens. It was right there in my question to Ditka, Plain as day, nothing hidden.
  #170  
Old 06-04-2019, 08:21 PM
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It's awesome that you speak of it like it's just one of those things that happens. When in American history has it happened before?
Iggy has had a series of very good posts on the subject. You really ought to read them all, but I'm not going to take the time to link them all for you when just one will suffice:

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As Daniel Patrick Moynihan said, you are not entitled to your own facts.

The Senate refusing to even take a vote on a SCOTUS nominee is not unprecedented. Three times the Senate treated nominees by Millard Fillmore in such fashion.

Tyler had such trouble getting his nominees through that he resorted to re-nominating a candidate, Reuben Walworth, whose prior nomination had been dealt with in the Seante by tabling the matter and never getting and up or down vote. When Tyler again nominated Walworth the Senate just ignored the nomination, not even a vote to table.

A majority of the unsuccessful nominations to the high court never got an up or down vote in the Senate. Their nominations failed for a variety of reasons, including inaction by the Senate.

Just go read this thread. Page three post #149 is where names and dates of such ill treated nominees are laid out.

We keep going back to this so often that we need a damn Sticky. Garland was, IMHO, treated in a shitty manner. But it was not unprecedented that the Senate did not vote on his nomination. Amazingly enough politicians have been doing shitty things for a very long time. The present set of Senators are just recycling ideas that have been used before.
  #171  
Old 06-04-2019, 08:28 PM
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No really, I mean when? If you don't have an answer, give Ditka a few minutes to google something. I was asking him.
I don't feel like researching it, atm. But you sure seemed to think it was a winning rhetorical question and I was merely hinting that you research and refine it yourself before you use it in your next internet argument.


But now I see HD has linked to a previous discussion where it was mentioned.
  #172  
Old 06-04-2019, 08:35 PM
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No, I wanted an answer and Ditka linked to one. You still have not. Thanks?

Last edited by bobot; 06-04-2019 at 08:36 PM.
  #173  
Old 06-04-2019, 09:02 PM
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...He was just unhappy when the Senate decided to decline to provide their advice and consent and confirm his nominee. That is the Senate's prerogative, upsetting as some of you found it.
What was the vote when the Senate declined to provide their advice and consent?

I had the impression that had Garland been put forward, he would likely be confirmed. But this is not so? The overwhelming disgust in the Senate for this blackguard, scoundrel and despoiler of maidens...no way?

You seem anxious to give the impression that the Senate acted as a body, a discrete entity. But Shirley close to half of that august assembly wanted to vote for Mr Garland, maybe some others. There is no math, new or old, wherein "about half" equals "unanimous".

And I will not sit idly by and watch Millard Fillmore dragged through the mud! There are decent limits! Limits!
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  #174  
Old 06-04-2019, 09:02 PM
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Whatever buddy.
  #175  
Old 06-04-2019, 10:33 PM
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Because that would show that is not just one of those things that happens. It was right there in my question to Ditka, Plain as day, nothing hidden.
And prior to the 1960s, men didn't walk on the moon. So what?
  #176  
Old 06-04-2019, 11:15 PM
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Imagine if — one by one — enough Senators had looked into the camera and said to Obama on national television, “we’ll vote against anyone you pick. Have we now made that clear? We’re telling you not to bother, since we won’t consent.” And then Obama nominates a guy, and the Senators say, “just to make sure: you get that we’re going to chuckle while going through the motions, and that the answer is going to be ‘no’, right? You’re not some dimwit hereby getting encouraged to try this a second and a third time? Because, on the off chance that you are that foolish, we’re each going to walk up to a podium to slowly and patiently explain that you were told what’d happen, and that it’s now happening, and that the answer will always be ‘no’. Maybe it’ll get through to you? No? Do you need it even slower, and in smaller words?”
Sure, if 50 senators had gone in public and announced that they would toe the party line as defined by McConnell, then Obama would know that any nominees would be voted down.

That's fine, but that is not what happened. One senator made the decision that no other senators would have to make that declaration.

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So any means are justified so long as it keeps the other side from winning? Do you realize who this sounds like?
Yeah, it sounds a bit like Mitch McConnell. Are you saying that playing the game his way is wrong, or that it is only wrong if democrats do it?

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Oops, I was wrong about that -- I guess "quorum" is defined in the Constitution. Still worth a try, since the alternative is losing without a fight.



"Try anything" without violence, IMO. And I see no reason to believe that your view of "the rules" is any better than mine or anyone else's, at least based on this argument-free paragraph. Trying stuff like this (assuming a similar scenario to the Garland nomination) could result in nothing worse than McConnell winning. When the worst-case scenario is the status quo, then that sounds like something worth considering, when the alternative is losing without a fight.
This is brainstorming level. At brainstorming level, considering everything is valid and useful.

At the actual "try" level, some of these ideas may not seem practical or beneficial.

But still, words on a message board bind no one to an action. Throw out ideas, serious or un-serious, and maybe we'll find something that can work.

I prose considering a herd of ponies to be a quorum, and then wishing them into the senate chambers.

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A better-crafted system would make it harder or impossible for bad people to do this kind of thing. The rules could clearly state that the Senate is required to vote on nominees, for example, within 60 days, or something like that, and a lack of a vote = implied consent.
Should a sane group ever get enough power to do so, it seems the best way would be that a minority, say either 34% or 40%, can force a vote to the floor.

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The system also permits, even encourages, amendment when such troubles with unworthy trustees appear. It isn't broken.
Unfortunately, those very un(trust)worthy trustees are in charge of that very amendment system.

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Maybe your stupid idea cobbled together with surprising ignorance of the legal framework could work. Maybe! We got nothing to lose by trying stupid ignorant strategies! So says iiandyiiii.
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Do you know what "opportunity cost" means?
Yes, the opportunity cost of doing nothing is authoritarianism. This isn't hyperbole, or limited to this situation or here and now, this is always the case with any democracy. The price of self governance is vigilance over those to whom we entrust power.

As to how you meant it, in that there is a cost to doing things that excludes other, I may point out that there are quite a number of people and organizations with quite a bit of resources to try different tactics. We can walk and chew gum, while juggling.

Don't you worry yourself about us exhausting our resources in the fight against wannabee fascists, until they are able to actually shut down or subvert the elections, we stand a chance, and we will never stop fighting.


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Based on this thread, it sounds like you've just described the Democratic Party.
By "clever ways", do you mean having the plurality of the people on our side?

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"We should reverse the presumption of confirmation" - Chuck Schumer, 2007

"wish granted" - Senator Mitch McConnell, 2016, probably
We can argue whether or not Schumer should have lobbied other democrats to vote against a potential Bush nominee (personally, I am/was against it), but at no time did he say that there should not be a vote.

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The “proviso or limit” is that he can only do it with the consent of enough Senators. And, if he doesn’t get that consent in the last year of office, then he can’t do so. So if Obama doesn’t actually get that consent in his last year of office, but Trump actually does, well, then — what? Why should it matter that the guy mentioning this is sipping tea while just sort of being accurate about stuff?
And how do we know that there would not have been the consent of enough senators without holding a vote of those senators?

If they had all gone on public record as being against any Obama nominee, then you may have a point. As they very specifically chose not to go on public record, then I do not agree to your assumptions as to what would have happened had the vote gone to the floor.

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Obama won the power to nominate judges. Senator McConnell (and the Senate Republicans collectively) won the power to confirm them or not.
But it was not the Senate Republicans who chose to confirm or not, it was just one Senator.
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Nobody prevented Obama from using his power to nominate. He did. He was just unhappy when the Senate decided to decline to provide their advice and consent and confirm his nominee.
Did you just admit that the Senate did not provide advice and consent, as required by the Constitution?
  #177  
Old 06-05-2019, 12:49 AM
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... Yeah, it sounds a bit like Mitch McConnell. Are you saying that playing the game his way is wrong, or that it is only wrong if democrats do it? ...
I'm saying it's wrong to condemn his tactics and then turn around and adopt them. It's hypocritical: "it's so awful that Senator McConnell plays hardball but we should play hardball".

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... But it was not the Senate Republicans who chose to confirm or not, it was just one Senator. ...
No, it was a majority. If the majority had wished otherwise, they could have forced a vote over Senator McConnell's objections.


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... Did you just admit that the Senate did not provide advice and consent, as required by the Constitution?
No, they aren't "required by the Constitution" to provide their advice and consent (it says the President "by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court"). "advice and consent" is a term of art that amounts to "confirm". The Senate declined to confirm Obama's nominee. That's what I "admitted", and no, the Constitution does not require them to confirm him, nor does it require them to vote on him, and nor does it require them to hold a hearing. They can choose to take no official action on a nominee, which amounts to withholding their "advice and consent" / not confirming the nominee.

Last edited by HurricaneDitka; 06-05-2019 at 12:52 AM.
  #178  
Old 06-05-2019, 02:25 AM
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I'm saying it's wrong to condemn his tactics and then turn around and adopt them. It's hypocritical: "it's so awful that Senator McConnell plays hardball but we should play hardball".
No, what is hypocritical is expecting a different standard from your oposition thanyou hold yourself to.

You kick in the balls once, and I tell you that's against the rules and not do do it again. You tell me it's not against the rules, and kick me in the balls again, then I'm gonna take a "look" at this rule book, and if eye gouging isn't "against the rules", then it's fair game.

You either play the game in good faith, or you give up the high ground for complaining about fairness. McConnell's move was not in good faith, and you know it.
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No, it was a majority. If the majority had wished otherwise, they could have forced a vote over Senator McConnell's objections.
Right signing on to cross the aisles and work with the minority in order to craft procedure to go over their Leader's head has the same political cost as casting a vote for a nominee.
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No, they aren't "required by the Constitution" to provide their advice and consent (it says the President "by and with the Advice and Consent of the Senate, shall appoint ... Judges of the Supreme Court"). "advice and consent" is a term of art that amounts to "confirm". The Senate declined to confirm Obama's nominee. That's what I "admitted", and no, the Constitution does not require them to confirm him, nor does it require them to vote on him, and nor does it require them to hold a hearing. They can choose to take no official action on a nominee, which amounts to withholding their "advice and consent" / not confirming the nominee.
Oh yeah, if they want to play games with our country, they can choose to interpret their obligations in such a manner. There's quite a bit of creative interpretation that goes on in order to undermine democracy for their personal gain going on these days, I see.
  #179  
Old 06-05-2019, 03:01 AM
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... Right signing on to cross the aisles and work with the minority in order to craft procedure to go over their Leader's head has the same political cost as casting a vote for a nominee. ...
I never claimed it "has the same political cost", merely that if they had for some reason wanted to vote on Garland, Senator McConnell, by himself, could not have prevented that from happening. He had the consent / support of the majority to do what he did.
  #180  
Old 06-05-2019, 04:15 AM
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Did you just admit that the Senate did not provide advice and consent, as required by the Constitution?
This seems breathtakingly wrong.

Clearly the Senate isn’t “required by the Constitution” to provide consent; even you seem fine with the idea of the Senate voting down a nominee. But if you grant that the Senate isn’t required to provide consent, then why would you think the Senate would be required to provide advice and consent?

Near as I can tell, it’s the President who was “required by the Constitution” to get that consent, if he wanted to do X; that doesn’t mean the Senate is required to provide him with it, the whole point is that they might not provide that consent.
  #181  
Old 06-05-2019, 08:24 AM
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But they still have to make that decision.
  #182  
Old 06-05-2019, 08:42 AM
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The Senate decides their own procedural rules and those rules says the Senate majority leader sets the legislature's agenda. So whether you like it or not, they made a decision by refusing to hold hearings. It was pretty cowardly and done on a flimsy excuse but it was not outside the rules.
  #183  
Old 06-05-2019, 09:22 AM
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House passes new Dream Act.

I doubt Mitch will let it come up for a vote.

https://www.cbsnews.com/news/dream-a...o-citizenship/
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Old 06-05-2019, 09:33 AM
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Another good candidate for "if you hold no vote, it passes." If you don't like any specific legislation, then vote it down.
  #185  
Old 06-05-2019, 09:47 AM
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Another good candidate for "if you hold no vote, it passes." If you don't like any specific legislation, then vote it down.
You simply can't do that with your system. The Senate doesn't vote on the House bill, they create their own parallel bill to pass. Youre demanding that the Senate let the House set their agenda. And if you take a step back you'll realize that there is a shit tonne of stupid stuff the House passes that AREN'T good candidates for "if you hold no vote, it passes."
  #186  
Old 06-05-2019, 10:02 AM
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I never claimed it "has the same political cost", merely that if they had for some reason wanted to vote on Garland, Senator McConnell, by himself, could not have prevented that from happening. He had the consent / support of the majority to do what he did.
Just so long as you are not under the impression that you are making a reasonable request of those who may have supported the nomination.

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Originally Posted by The Other Waldo Pepper View Post
This seems breathtakingly wrong.
Nice hyperbole in your adjective choice. Gives your objection more gravitas, don't you tink?
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Clearly the Senate isn’t “required by the Constitution” to provide consent; even you seem fine with the idea of the Senate voting down a nominee.
Of course, that's why they have a vote.
Quote:
But if you grant that the Senate isn’t required to provide consent, then why would you think the Senate would be required to provide advice and consent?
I think that the senate should be asked, and in this case, the senate was not.
Quote:
Near as I can tell, it’s the President who was “required by the Constitution” to get that consent, if he wanted to do X; that doesn’t mean the Senate is required to provide him with it, the whole point is that they might not provide that consent.
Of course they can vote against the nominee, that's the whole point.

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Originally Posted by CarnalK View Post
The Senate decides their own procedural rules and those rules says the Senate majority leader sets the legislature's agenda. So whether you like it or not, they made a decision by refusing to hold hearings. It was pretty cowardly and done on a flimsy excuse but it was not outside the rules.
Authoritarianism is usually established according to the rules.
  #187  
Old 06-05-2019, 10:08 AM
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Is the point of that post that you agree Mitch followed the rules but you really wish he'd held a vote?
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Old 06-05-2019, 10:11 AM
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You simply can't do that with your system. The Senate doesn't vote on the House bill, they create their own parallel bill to pass. Youre demanding that the Senate let the House set their agenda.
I'm not sure that's how it works. The can create a new bill, or they can modify a bill, but they can also vote on the house bill

Funding bills can only originate in the house, so if you are correct, then how can the senate vote on a funding bill?

In any case, can go both ways and require the house to vote on bills sent to it be the Senate.
Quote:
And if you take a step back you'll realize that there is a shit tonne of stupid stuff the House passes that AREN'T good candidates for "if you hold no vote, it passes."
And how is that determined? Is that the determination of one person as to what is "stupid stuff"? Why not ask the senators what they think? If holding no vote means it passes, then that wold encourage senators to vote against things that they think are stupid, rather than avoiding taking a position on it.
  #189  
Old 06-05-2019, 10:18 AM
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Is the point of that post that you agree Mitch followed the rules but you really wish he'd held a vote?
No, my point is that creative interpretations of the rules, which even if technically justifiable with a motivated reasoning, but is against the spirit of the law and against the interests of democracy is how fascists take power.

We can let this happen, because they didn't technically break any rules, or we can hold them to account for damaging our institutions and the public's faith in them. Even if you liked the results, you should be horrified by the process that got them.

Just like a SovCit is technically right that the President that presided over the imposition of income tax was not born in a state that was at the time fully and officially entered into the union, and thinks that that technicality means that they don't have to pay taxes. Their argument seems silly, until they are in a position to actually enforce it.

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  #190  
Old 06-05-2019, 10:32 AM
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I don't know if it's technically a different bill but any complex legislation often has to go through a Conference Committee to hash out differences between what the House passed and what the Senate passed.

I think he should have let a vote happen but what he did was not a novel new creative way to interpret the rules. Legislation and nominations have been allowed to expire without a vote for the entire history of the country.

Last edited by CarnalK; 06-05-2019 at 10:33 AM.
  #191  
Old 06-05-2019, 04:37 PM
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A "lack of judicially discoverable and manageable standards for resolving it; "
"Resolving it," in this case, would consist of interpreting the Constitution. IOW, the power the Supreme Court has asserted since Marbury. It's kinda their day job.

But as always, thanks for playing.
  #192  
Old 06-05-2019, 05:14 PM
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"Resolving it," in this case, would consist of interpreting the Constitution. IOW, the power the Supreme Court has asserted since Marbury. It's kinda their day job.

But as always, thanks for playing.
Boy, such confidence. It's almost like you think you're an authority. You're free to believe the court would order the Senate to convene and have a vote. I'll be sitting over there in reality, let me know how it goes.
  #193  
Old 06-05-2019, 05:23 PM
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"Resolving it," in this case, would consist of interpreting the Constitution. IOW, the power the Supreme Court has asserted since Marbury. It's kinda their day job.

But as always, thanks for playing.
At this district court level, but attempts have been dismissed for lack of standing here and here.
  #194  
Old 06-05-2019, 07:27 PM
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At this district court level, but attempts have been dismissed for lack of standing here and here.
On which ground? We're arguing about the one that CarnalK gave.

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Boy, such confidence. It's almost like you think you're an authority. You're free to believe the court would order the Senate to convene and have a vote. I'll be sitting over there in reality, let me know how it goes.
Wow, what a rebuttal! I'm floored.

We'll see if Bone has something in those cases that backs you up, depending on whether he's got the energy to do more than link to a couple of court cases. I swear, I'm gonna start claiming victory by linking to the front page of Wikipedia.

Last edited by RTFirefly; 06-05-2019 at 07:28 PM.
  #195  
Old 06-05-2019, 08:13 PM
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I'm not sure what you think is not responsive. Two individuals filed suit to attempt to compete McConnell to hold a vote and the court said they don't have standing. It was district level, so not a final adjudication, but it seems to speak to your idea that the court could resolve the lack of holding a vote issue.
  #196  
Old 06-05-2019, 09:45 PM
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I think RTFirefly's plan is that the President would file the lawsuit, who I assume would take different legal reasoning to show he has no standing.
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Old 06-06-2019, 06:20 AM
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I'm not sure what you think is not responsive. Two individuals filed suit to attempt to compete McConnell to hold a vote and the court said they don't have standing. It was district level, so not a final adjudication, but it seems to speak to your idea that the court could resolve the lack of holding a vote issue.
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I think RTFirefly's plan is that the President would file the lawsuit, who I assume would take different legal reasoning to show he has no standing.
This is correct. In many (most?) cases involving actions by branches of the government, it takes more than just being a citizen to have standing. And dismissing a suit over standing means that none of the issues raised by the suit were addressed by the court.

No court has found a "lack of judicially discoverable and manageable standards for resolving" such a case, which is what CarnalK claims is the reason it would be dismissed as a political question.
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Boy, such confidence. It's almost like you think you're an authority. You're free to believe the court would order the Senate to convene and have a vote. I'll be sitting over there in reality, let me know how it goes.
Well, you've claimed that in the wake of the Senate refusing to consider the Garland nomination, the courts would have rejected a Presidential challenge based on the 'advise and consent' language because it was a political question per the "lack of judicially discoverable and manageable standards for resolving" standard, one of several standards for a question being a political question per Baker v. Carr.

I've disagreed, and I've given straightforward reasons that this is your rebuttal to.

Now it may be that a court would dismiss such a case as a political question under some other standard set out in Baker v. Carr. That's outside the scope of what we're debating here. Neither one of us is an authority, but I've made at least a brief argument, and you've made none.
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Old 06-06-2019, 08:01 AM
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I think your suggestion that the court would order the Senate to vote is rather obviously unconstitutional. As I said earlier, the Senate has a Constitutional right to set its procedures and those procedures include the Senate majority leader setting the agenda. The Supreme Court can't tell them to do it a different way so there is no remedy the court can apply.

And if you want substantial responses, maybe don't end your posts with "thanks for playing".

Last edited by CarnalK; 06-06-2019 at 08:01 AM.
  #199  
Old 06-06-2019, 08:04 AM
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I think your suggestion that the court would order the Senate to vote is rather obviously unconstitutional. As I said earlier, the Senate has a Constitutional right to set its procedures and those procedures include the Senate majority leader setting the agenda. The Supreme Court can't tell them to do it a different way so there is no remedy the court can apply.
If McConnell tries this again, we may see this tested in court. Along with other potential attempts at a solution. It doesn't seem likely to me that McConnell would be able to hold up a nomination for 2-4 years, but we'll see (or hopefully we won't!).
  #200  
Old 06-06-2019, 10:06 AM
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This is correct. In many (most?) cases involving actions by branches of the government, it takes more than just being a citizen to have standing. And dismissing a suit over standing means that none of the issues raised by the suit were addressed by the court.

No court has found a "lack of judicially discoverable and manageable standards for resolving" such a case, which is what CarnalK claims is the reason it would be dismissed as a political question.
Well, you've claimed that in the wake of the Senate refusing to consider the Garland nomination, the courts would have rejected a Presidential challenge based on the 'advise and consent' language because it was a political question per the "lack of judicially discoverable and manageable standards for resolving" standard, one of several standards for a question being a political question per Baker v. Carr.

I've disagreed, and I've given straightforward reasons that this is your rebuttal to.

Now it may be that a court would dismiss such a case as a political question under some other standard set out in Baker v. Carr. That's outside the scope of what we're debating here. Neither one of us is an authority, but I've made at least a brief argument, and you've made none.
Baker v. Carr was about redistricting wrt voter representation. How do you think Senate non-action on judicial nominees applies? Or is it that you're taking the political question standards from Baker? I mean, it seems clear that compelling the Senate to formally act would run afoul of the 4th criteria laid out in Baker, "impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government". There's probably other facets that would push towards non-judiciability, but that one would be sufficient.

Independent of the political question judiciability, I think standing would also be a tremendous hurdle. I'm not sure that such a suit, even brought by the President, wouldn't also be dismissed for lack of standing in the same way the other two cases I linked to did. From Michel linked above (my bold):
Quote:
Article III standing requires a "concrete and particularized injury" that is "actual or imminent, not conjectural or hypothetical." ... The injury must be "of individual concern;" it is not enough for a party to show an undifferentiated, "general interest common to all members of the public." ... The proper recourse for persons who have a generalized grievance is through the political process, not the courts. ... For a court to rule on the constitutionality of the activities of another branch without a uniquely injured individual "would be, not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess."

...

The Supreme Court concluded that the plaintiff did not have standing as a citizen and member of the Supreme Court bar because for "a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained ... a direct injury as the result of that action and [not just] that he has merely a general interest common to all members of the public."
The claim about vote dilution or seventeenth amendment violation may be different if coming from the President. What actual claim do you think the President could make that would yield a different reasoning? What particularized individual injury would the President allege? Due process maybe? I really don't see any path a Presidential claim could take.

These are opinion pieces, but were published in the NYT:

Quote:
Adam Liptak [SCOTUS correspondent for the NYT]
Q. Can the Supreme Court make orders in relation to Senate procedure or conduct?

A. I cannot imagine a situation in which the Supreme Court would tell the Senate how to conduct its affairs in these circumstances.

...

Michael D. Shear [White House correspondent for the NYT]
Q. Can the president sue the Senate for unconstitutional dereliction of duty?

A. There are really two questions here: Does a president have some legal standing to sue Congress for failing to do something, and would President Obama ever consider doing so if he could?

Anyone can sue anyone in the United States. But the answer to the first part is almost certainly no. The Constitution is very clear about the divisions of authority, and there is every reason to believe that any such case would never get heard by the courts. And Mr. Obama is unlikely to try anyway. If he cannot get a nominee through, he will be far more interested in the court of public opinion, especially in an election year.
There's also the matter of consistency. The framers understood how to require formal action if they wanted to. Article I, section 7 describing presentment, says that any bill not returned by the President within 10 days shall become law. They don't do this in any other place, including in the appointments clause. It would not be consistent to interpret a requirement to act by implication given there are explicit requirements to act in other places in the document. Omission of this should be taken as intentional.

And the appointments clause doesn't have unique application to SCOTUS nominees. It applies to all Article III judges. And in looking at that pool, it's fairly common for nominees to languish with no action taken by the Senate. For SCOTUS to read some requirement of formal action, they would be doing so for all Article III nominees.

The President is entitled to nominate, and it is up to the Senate to confirm. This separation of powers is pervasive throughout the constitution, and it would be an usurpation of one branch by another if they were to be compelled to act.

Last edited by Bone; 06-06-2019 at 10:07 AM.
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