# Democratic strategy regarding Supreme Court justices **URL:** \ **Category:** Great Debates\ **Created:** [November 28, 2016, 5:25pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297 "2016-11-28T17:25:24Z")\ **Posts on this page:** 20\ **Page:** 18
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 6, 2016, 5:09am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/341 "2016-12-06T05:09:47Z")
> [@Randvek](#): > > Non-sense. When the President does something, and the Senate has the power to stop it but doesn’t even attempt a vote, that sure looks a lot like “consent” to me. So why doesn’t Obama act on that “consent”? He is, after all, a constitutional scholar. Are you? Hint: there is nothing in the constitution that refers to a vote. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [December 6, 2016, 5:16am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/342 "2016-12-06T05:16:15Z")
> [@DrDeth](#): > > Article II, Section 2, paragraph 2 of the United States Constitution states: > > \*[The President] 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. > > - > > They are required to _advise and consent_. **The Senate** did neither. > > The Senate didnt hold a vote, or a hearing or give advice. Two Senate leaders simply said the Senate would not act. More or less Just one guy, Senate Republican leader Mitch McConnell . Senate Republican leader Mitch McConnell is not the Senate. _The Senate_ did not advise and consent. Required? What happens to them if they don’t? If nothing happens, then they are not required. Still, you are looking for advise and consent in a particular form. They are not “required” to adhere to your preferred form. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [December 6, 2016, 6:24am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/343 "2016-12-06T06:24:36Z")
> [@DrDeth](#): > > Still a vote. Of some sort. Held by the Senate, not just one guy. There are other examples in which the Senate did not even deign to vote to table a nomination but instead just ignored it. There is even an example where a motion to consider a nomination could not proceed for lack of a Senator willing to second the motion - and that was a Whig controlled Senate voting on a nomination from President Tyler, a Whig. His own party stonewalled him. No vote. This particular example was chosen due to a claim that the Founding fathers would have objected to the Garland treatment when it was in fact a feature of American politics from its very earliest days. No matter how many times CNN\*, Think Progress\*\*, Media Matters\*\*\*, or The Huffington Post\*\*\*\* claim that the Senate’s treatment of Garland is “unprecedented” it simply isn’t true without substantial qualification of the remark. And the media wonder why the public has lost confidence in them. :dubious: - [Cite](http://www.cnn.com/2016/12/05/politics/senate-democrats-nuclear-option-donald-trump/index.html) “…most notably their unprecedented refusal to even give the President’s Supreme Court choice, Merrick Garland, a hearing.” \*\* [Cite](https://www.youtube.com/watch?v=oV5HI1EirLE)(video link) " The Unprecedented Obstruction Of Obama’s Supreme Court Pick" \*\*\* [Cite](http://mediamatters.org/research/2016/03/16/myths-and-facts-on-the-nomination-of-judge-merr/209286#myth7)" Initial Reporting On Republican Obstructionism Downplayed Unprecedented Nature Or Ignored It Outright." \*\*\*\* [Cite](http://www.huffingtonpost.com/entry/merrick-garland-senate-lawsuit_us_582e49fce4b099512f820e7c)" No sir, you cannot sue the Senate over its unprecedented obstruction of the president’s Supreme Court nominee." ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 6, 2016, 11:11am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/344 "2016-12-06T11:11:25Z")
> [@Randvek](#): > > Non-sense. When the President does something, and the Senate has the power to stop it but doesn’t even attempt a vote, that sure looks a lot like “consent” to me. OK. And I should care how things “look,” to you why, exactly? Now, if you could point to some rule, law, regulation, or some other binding guidance that holds similarly, I’ll be interested. But since your only authority for this claim is how it “looks,” to you, I’m curious to understand your qualifications. What are they? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [December 6, 2016, 11:13am UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/345 "2016-12-06T11:13:48Z")
> [@DrDeth](#): > > Still a vote. Of some sort. Held by the Senate, not just one guy. How long are you going to keep trying the tactic of insisting something is true with no citation to any authority for the claim other than the fact you insist on it? Are you going to start stamping your foot and scowling cutely while saying it? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:13pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/346 "2016-12-07T16:13:44Z")
> [@Bricker](#): > > Really? > > The parties to that suit were the US government and Nader, neither of which defended the firing. > > That ruling means nothing. "Federal District Judge Gerhard A. Gesell ruled that the dismissal of Mr. Cox, in the absence of a finding of extraordinary impropriety as specified in the regulation establishing the special prosecutor’s office, was illegal. " What part of that ruling implies that it is not a judgment on the merits? What extraordinary impropriety did Cox engage in? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:18pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/347 "2016-12-07T16:18:04Z")
> [@Bricker](#): > > Did it include insubordination? By that you mean subpoenaing the Nixon tapes? Then, no. You can no more fire a special prosecutor for investigating the thing they were specifically tasked to investigate than you can fire a police officer for arresting the mayor because he committed a crime despite the mayor ordering the police not to arrest him. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:20pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/348 "2016-12-07T16:20:12Z")
> [@John\_Mace](#): > > The Senate gave Obama their advice. It was “shove it”. You just don’t like the advice, which is a completely different matter. No, the senate didn’t do anything, that’s sort of the source of the complaint. The Republican party did. Sure they control the senate but there is a difference between the party in control of the senate saying something and the senate saying something. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:31pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/349 "2016-12-07T16:31:55Z")
> [@Bone](#): > > Yes the constitution decides what their job is - can you point to a place in that document that says that holding a hearing or having a vote on a judicial nominee is part of their job? I bet you a quadrillion dollars that you can’t. Now there are in fact other duties that are specifically mentioned in the constitution - like choosing certain officers and having a President pro tempore. If you’re talking about those duties, then sure. If they fail to have a President pro tempore then go forth and accuse them of not doing their job. That would have constitutional basis. Saying that the Senate didn’t do its job with Garland does not. > > You recognize this when you say that they don’t have to have hearings and that it can be just about anything, then switch to the “ought to” phrasing when talking about a vote. Sure, they ought to. They ought to do a lot of things. They are not required to do this thing. Yes, they ought to vote. If they don’t, then they are in dereliction of their constitutional duties. What does advice and consent mean? Advice and consent is not limited to supreme court nominations. We also see it in ratification of treaties and because of the supermajority voting requirement for ratifying treaties, we see that voting is an integral part of advice and consent. Other advice and consent requirement presumably only require a majority vote (subject to filibuster). Informed advice and consent usually means public hearings but could just as easily be private interviews. “[The President] 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.” That probably isn’t good enough for you to need my paypal account for that quadrillion dollars but there is a voting element to the advice and consent requirement. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:34pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/350 "2016-12-07T16:34:45Z")
> [@HurricaneDitka](#): > > There are 10 Senate Democrats up for election in 2018 in states won by Trump. I think the more likely defections will be Democrats voting for a Trump nominee rather than Republicans voting against it. It depends on who Trump nominates. If Trump engages in the culture war with his nominations, I don’t think the rust belt voters who elected him are going to be particularly happy about the focus on shit like gay wedding cakes and vaginal sonogram abortion requirements. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:35pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/351 "2016-12-07T16:35:47Z")
> [@Iggy](#): > > No. Unless you consider a Senate voting to defer considering a nomination a “vote”. There was no consideration of the candidate on his merits. There was no vote to grant or refuse advice and consent. Did they vote to defer consideration of the nominee? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:37pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/352 "2016-12-07T16:37:49Z")
> [@John\_Mace](#): > > Why does there have to be a vote? The constitution says nothing about a vote. But the Constitution does say the Senate gets to set its own rules. “The President] 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.” There is a voting element to advice and consent. You can choose to read it some other way but most constitutional scholars do not think that advice and consent can be fulfilled with a middle finger from the majority leader. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:40pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/353 "2016-12-07T16:40:22Z")
> [@John\_Mace](#): > > Required? What happens to them if they don’t? If nothing happens, then they are not required. > > Still, you are looking for advise and consent in a particular form. They are not “required” to adhere to your preferred form. The constitution also forbids them from questioning the federal debt. What would happen to them if they said, they would not pay interest on the federal debt on debt held by hostile regimes like ISIS? Nothing. Does that mean that they are not required to refrain from questioning the national debt? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:41pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/354 "2016-12-07T16:41:29Z")
> [@John\_Mace](#): > > So why doesn’t Obama act on that “consent”? He is, after all, a constitutional scholar. Are you? > > Hint: there is nothing in the constitution that refers to a vote. > [@](#): > > The President] 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. “provided two thirds of the Senators present concur” Concur in that context means vote. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [December 7, 2016, 4:45pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/355 "2016-12-07T16:45:41Z")
> [@Iggy](#): > > There are other examples in which the Senate did not even deign to vote to table a nomination but instead just ignored it. > > There is even an example where a motion to consider a nomination could not proceed for lack of a Senator willing to second the motion - and that was a Whig controlled Senate voting on a nomination from President Tyler, a Whig. His own party stonewalled him. No vote. > > This particular example was chosen due to a claim that the Founding fathers would have objected to the Garland treatment when it was in fact a feature of American politics from its very earliest days. > > No matter how many times CNN\*, Think Progress\*\*, Media Matters\*\*\*, or The Huffington Post\*\*\*\* claim that the Senate’s treatment of Garland is “unprecedented” it simply isn’t true without substantial qualification of the remark. And the media wonder why the public has lost confidence in them. :dubious: > > - [Cite](http://www.cnn.com/2016/12/05/politics/senate-democrats-nuclear-option-donald-trump/index.html) “…most notably their unprecedented refusal to even give the President’s Supreme Court choice, Merrick Garland, a hearing.” > > \*\* [Cite](https://www.youtube.com/watch?v=oV5HI1EirLE)(video link) " The Unprecedented Obstruction Of Obama’s Supreme Court Pick" > > \*\*\* [Cite](http://mediamatters.org/research/2016/03/16/myths-and-facts-on-the-nomination-of-judge-merr/209286#myth7)" Initial Reporting On Republican Obstructionism Downplayed Unprecedented Nature Or Ignored It Outright." > > \*\*\*\* [Cite](http://www.huffingtonpost.com/entry/merrick-garland-senate-lawsuit_us_582e49fce4b099512f820e7c)" No sir, you cannot sue the Senate over its unprecedented obstruction of the president’s Supreme Court nominee." And most of these are also failures of the senate to perform its duty. Noone is saying the republic falls if they don’t fulfill their duty to provide advice and consent. Sure, was political and the Democrats could have countered it politically but the Democrats were sooooooo sure that the Madonna Hillary was going to beat Trump that they decided to let the Republicans hang themselves. And now they are hoping beyond hope that a bunch of octagenarians on the court can live 4 to 8 more years. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 7, 2016, 4:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/356 "2016-12-07T16:46:12Z")
> [@Damuri\_Ajashi](#): > > There is a voting element to advice and consent. You can choose to read it some other way but most constitutional scholars do not think that advice and consent can be fulfilled with a middle finger from the majority leader. We’ve spent the last nine months establishing that yes, in fact, the majority leader’s middle finger is all it takes for the Senate to withhold its advice and consent on a nominee. If it weren’t so, we would be have a Justice Garland right now. > [@Damuri\_Ajashi](#): > > It depends on who Trump nominates. If Trump engages in the culture war with his nominations, I don’t think the rust belt voters who elected him are going to be particularly happy about the focus on shit like gay wedding cakes and vaginal sonogram abortion requirements. He gave a list of 21 potential nominees before the election. Rust belt voters had ample opportunity to read the list and many of them voted for Trump. Do you think those 21 nominees represent a “focus on shit like gay wedding cakes and vaginal sonogram abortion requirements” that would leave those voters not particularly happy? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [December 7, 2016, 4:46pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/357 "2016-12-07T16:46:19Z")
> [@Damuri\_Ajashi](#): > > Yes, they ought to vote. If they don’t, then they are in dereliction of their constitutional duties. As has been pointed repeatedly, the Constitution does not require a vote on SCOTUS nominees. > [@](#): > > “[The President] 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.” Did you notice anything different about the Advice and Consent required for treaties vs. the Advice and Consent for SCOTUS nominees? Regards, Shodan ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [December 7, 2016, 4:48pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/358 "2016-12-07T16:48:33Z")
> [@Damuri\_Ajashi](#): > > … was political and the Democrats could have countered it politically … What do you mean by this? What could the Democrats have done to counter it “politically”? Do you mean win the election? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [December 7, 2016, 4:55pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/359 "2016-12-07T16:55:30Z")
> [@Damuri\_Ajashi](#): > > Yes, they ought to vote. If they don’t, then they are in dereliction of their constitutional duties. First you must establish what the Senate’s constitutional duties are. Then you must establish that voting is included within those duties. You haven’t done either of those things. > [@](#): > > What does advice and consent mean? Advice and consent is not limited to supreme court nominations. We also see it in ratification of treaties and because of the supermajority voting requirement for ratifying treaties, we see that voting is an integral part of advice and consent. Other advice and consent requirement presumably only require a majority vote (subject to filibuster). Informed advice and consent usually means public hearings but could just as easily be private interviews. You start this paragraph with a question about the meaning of ‘advice and consent’ but you didn’t answer the question. You want it to mean a hearing, or a vote, or a private interview, or something - but really it means whatever the senate wants it to mean. The same section from\*\*\* Article II \*\*\* doesn’t mention any of these things. > [@Damuri\_Ajashi](#): > > There is a voting element to advice and consent. You can choose to read it some other way but most constitutional scholars do not think that advice and consent can be fulfilled with a middle finger from the majority leader. And you have a cite for this? Two claims - that there is a voting element and that most constitutional scholars think a certain thing. If you are taking my bet - I’ll accept installment payments, with interest of course. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [December 7, 2016, 5:02pm UTC](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297/360 "2016-12-07T17:02:21Z")
> [@Damuri\_Ajashi](#): > > It depends on who Trump nominates. If Trump engages in the culture war with his nominations, I don’t think the rust belt voters who elected him are going to be particularly happy about the focus on shit like gay wedding cakes and vaginal sonogram abortion requirements. Sure, but that probably falls beneath the outraged-enough-to-do-something-about-it threshold. I would guess that the vast majority of Rust Belt Trump supporters would either approve of someone like William Pryor, or disapprove, but not disapprove to the point of anything more than eye-rolling or a sigh and then going on with their lives. A lot of politics is about finding that middle spot whereby you can upset people by your actions but not enough to the point of them actually mobilizing to action about it. [Previous page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=17) [Next page](https://boards.straightdope.com/t/democratic-strategy-regarding-supreme-court-justices/773297.md?page=19)