The Constitution also just says the Senate needs to advise and consent, so a bunch of Senators (say, all the Democrats in the Senate) getting together and “advising and consenting” to a nominee in writing would be just as Constitutional as the Majority leader deciding to do nothing, as far as I can tell. There is nothing in the Constitution that prevents Democratic Senators from providing “advice and consent” to the President for a nominee that the Majority leader refuses to hold hearings on.
Just something the Democrats should consider next time anything like Garland happens. McConnell has proven that he can get away with things that aren’t explicitly allowed in the Constitution as long as they also aren’t specifically disallowed either.
Imagine that next November President Trump wins re-election but the Republicans barely lose their majority (49-51) and then Ginsburg retires. You’re saying you’d be fine with Minority Leader McConnell granting “advice and consent” to President Trump’s nominees if Schumer decided not to hold hearings and a vote?
Just how far could a minority of Senators take this, in your opinion? Could any lone senator scribble “I advice and consent to Justice Barrett” on a cocktail napkin and that suffice?
Yes, that’s certainly one way to look at it. What are your thoughts on iiandyiiii’s “the minority could just get together and grant their advice and consent” idea? Does it strike you as hare-brained as it does me?
Democrats should play the same game with the same stakes. They have nothing to lose, should the circumstances come up again, by trying this idea. It’s kind of nuts, but so is abrogating the responsibility to “advise and consent” as McConnell did. Might as well try it if the alternative is that the Republicans control SCOTUS forever.
If my idea succeeded, Majority leaders would never abrogate their responsibility to hold hearings and votes again. They’d have to actually vote down nominees, which is indeed possible, lest the minority take over the process. If my idea failed, then the Democrats lose nothing that’s not already lost. Refusing to hold hearings and a vote violates the spirit of the Constitution, if not the letter. The Democrats should try and play that game too, if the alternative is just ceding everything to the Republicans.
I’m not clear what difference this would make. If all the Democratic senators in 2016 had drafted some sort of official “advice and consent” document agreeing to Garland’s nomination, what would have happened – other than McConnell chuckling to himself and still not holding hearings or a vote?
Maybe nothing, maybe the DoJ drafts an opinion and escorts Garland to the SCOTUS building. Maybe the SCOTUS disagrees but issues an opinion that forces (or just pressures) McConnell to actually hold hearings and a vote. None of that is worse than what actually happened, and some of it is a lot better.
In that scenario, the Democrats have nothing to lose by trying relatively crazy stuff like this.
Another option would have been for the President of the Senate to override McConnell and hold the vote anyway. And yet another option would have been for Obama to declare that he was interpreting the lack of any vote against Garland as consent.
Right. Next time hopefully the Democrats will try one of these options, or something like it. The worst thing that could happen is McConnell wins, which would have happened anyway.
All this time later, I still don’t get why that’s the dividing line.
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?”
The objection, years later, is that that would be so much less bad?
Yes, that would be “so much less bad”, assuming there was an actual vote. That would have been a formal “advice” from the Senate, as opposed to doing nothing, which cannot be interpreted as “advising” in any way at all. Your hypothetical didn’t happen. Who knows if it would have happened? McConnell chose to do nothing instead, very clearly violating the spirit of the Constitution, if not the strict letter. The Democrats should fight back with the same willingness to violate the spirit of the Constitution, but not the letter, when it might gain them some advantage.
Elections have consequences. Denying Garland was a bold political move, though also an incredibly high stakes gamble that paid off. Just because historically Democrats have played the game worse doesn’t mean they weren’t playing. Garland was another step in a long line of political moves with the court. It’s gotten quite a bit of mileage though, and time will tell if Garland is a wake up call and rallying cry like Bork was for Republicans.
No. This is wrong. You’ve made this declaration in various threads on the subject but it’s wrong and there is no evidence to support this assertion. If you want to say they were ethically bound, or morally obligated, or some other measure that doesn’t have objective criteria associated with it then that’d be fine as opinion, but as a factual matter there is no basis to assert that the Senate was constitutionally obligated to vote on Garland.
Not even close. It is a faith based position that has no basis in reality.
This is so absurd it’s, well, absurd. Assuming 100 senators, two senators could not satisfy Article II advice and consent any more than 49 could. A quorum of the senate is defined as a majority, and without a quorum the senate could not conduct business.
What you’re suggesting is not playing the same game, unless that game is Calvinball. Utilizing rules for political advantage - that’s what Republicans have done. What you’re suggesting is to not adhere to rules at all. I see only a small difference between that and political assassinations, which I think is bad. I’m not sure if you would leave that possibility open under the guise of ‘try anything’.
