# Garland should just sit down and judge? **URL:** \ **Category:** Great Debates\ **Created:** [March 31, 2016, 5:04pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757 "2016-03-31T17:04:24Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Folacin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/folacin/32/3195_2.png) [@Folacin](https://boards.straightdope.com/u/Folacin)\ **Post date:** [March 31, 2016, 9:15pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/21 "2016-03-31T21:15:15Z")
> [@Shodan](#): > > Tacit consent to a Supreme Court nomination is not well-established - there is no indication of it in the Constitution. If someone can make up the idea of tacit consent for the Senate without any Constitutional justification, the idea of tacit nomination needs no more justification. The problem with tacit nomination is that there is no way to determine who has been tacitly nominated - could be Bricker, could be you, could be me, could be Putin (no citizenship requirement for the court, AFAIK). And if the president refuses to nominate someone, there is the Constitutional remedy of impeachment, with a charge of failure to perform a mandated function. Tacit consent doesn’t suffer from that - either a nominee is confirmed, or she is denied. And the Senate has an easy path to show their actual stance - hold a vote (this whole “no meetings, no hearings, no votes” thing is just amazingly stupid). Of course, the Senate not acting can also be read as tacitly not consenting, but that can’t be known with certainly (refer back to just vote, already). If it happened, I imagine it would come down to if the other SCOTUS members counted Garland’s vote. Much like the Senate, I imagine they get to set their own rules, subject ultimately to impeachment? For instance, did SCOTUS set their quorum at 6(?), or is that somewhere in the US code? ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [March 31, 2016, 9:15pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/22 "2016-03-31T21:15:16Z")
I just noticed that the specific text in the Constitution is: > [@](#): > > He (the President) shall have the 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 Councils, 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. I have added emphasis on the word “present” as this seems a rather interesting criteria. To clarify that the result is dependent on the specific number of Senators present at that moment, that strongly implies an intent for immediacy in the vote. ---
**Author:** ![Skammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/skammer/32/143_2.png) [@Skammer](https://boards.straightdope.com/u/Skammer)\ **Post date:** [March 31, 2016, 9:23pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/23 "2016-03-31T21:23:17Z")
Tacit consent is a real thing. “Tacit nomination” is not. I see a legitimate difference there. The article is not arguing that Senate consent is not required, it’s suggesting that not considering the issue at all _is_, in fact, giving tacit consent. There are plenty of examples where failure to object is construed as consent. Not that I think this argument is likely to succeed given the weight of precedent. But as a thought experiment it’s not completely absurd. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 31, 2016, 10:29pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/24 "2016-03-31T22:29:35Z")
> [@Folacin](#): > > Not that I expect it to happen, but what would happen if it did? I think most people (and I include myself) would refuse to accept Garland’s presence on the bench as legitimate. I suspect that even if he somehow managed to be physically present, his “votes” on decisions would be ignored. To me, the Senate choosing to refuse to hold a vote on a nomination is the same as voting against the nomination. They’re both a means of denying the necessary consent, although one is more cowardly. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [March 31, 2016, 10:35pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/25 "2016-03-31T22:35:46Z")
> [@Bricker](#): > > Shodan’s point is a good one. You know better than that. The Constitution says plain and clear that the president and nobody else can appoint a justice. The Senate’s prescribed role is more ambiguous. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 31, 2016, 10:37pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/26 "2016-03-31T22:37:58Z")
> [@Sage\_Rat](#): > > Or, it makes the (reasonable) assumption that the elected representatives of the people are expected to do their job. There is a clear mandate in the Constitution that they deliberate the President’s selection. They are choosing to ignore this mandate instead of fulfilling the requirements of their office. > > …Delaying wasn’t a check to power that was written in. (post shortened) The U.S. Senate is doing their job. They do not have to debate a judge’s confirmation. If you want to put your opinion to the test, file a lawsuit against the U.S. Senate. If there actually is a “clear mandate” you should have no problem forcing the U.S. Senate to do your bidding. Good luck with that. A U.S. Senate’s act of delaying, or not having, a confirmation hearing isn’t the President’s call. Or yours. The Yale law review essay tries to make the case that if a President is being stymied by Congress, the President should ignore the U.S. Constitution, and the U.S. Senate, and proceed however they see fit. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 31, 2016, 10:48pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/27 "2016-03-31T22:48:39Z")
> [@BrainGlutton](#): > > You know better than that. The Constitution says plain and clear that the president and nobody else can appoint a justice. The Senate’s prescribed role is more ambiguous. _by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court…_ The U.S. Senates role in this issue doesn’t seem ambiguous at all. A Supreme needs the consent of the Senate or they ain’t gonna be a Supreme. A Supreme needs approval from both the President and the U.S. Senate. How the U.S. Senate handles it’s responsibility is up to the U.S. Senate. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [March 31, 2016, 10:51pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/28 "2016-03-31T22:51:36Z")
Why won’t the Senate vote on Garland, though? Stop focusing on whether they have the legal obligation to vote on Garland’s nomination, and start focusing on whether it’s a bullshit coward fuckstick way to operate. If Garland is poison, then vote him down. If he’s good, then vote him in. I thought conservatives believed in the social norms of America? When congress refuses to act, it gives more and more political cover for the executive branch of government to operate by fiat. “We’re going to wait until a Republican gets elected and nominates another Scalia.” Seriously? You should be ashamed of yourselves. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [March 31, 2016, 11:03pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/29 "2016-03-31T23:03:19Z")
Could someone spell out for me the history of the Senate and tacit consent. Right off the top of my head, I know of no situation, ever, in which a failure of the Senate to act on an issue has been regarded as tacit consent on that issue by the Senate. Educate me! ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [March 31, 2016, 11:27pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/30 "2016-03-31T23:27:01Z")
So… While the Senate is “not in recess,” but one guy is there to bang the gavel every few days (so there can be no recess appointments) all of a sudden, by pre-arrangement, six Democratic Senators show up, and take a vote. By six to one, the appointment is confirmed. They’ll wish they had re-thought that “remains in session” thing. ---
**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:** [March 31, 2016, 11:34pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/31 "2016-03-31T23:34:52Z")
> [@Trinopus](#): > > So… While the Senate is “not in recess,” but one guy is there to bang the gavel every few days (so there can be no recess appointments) all of a sudden, by pre-arrangement, six Democratic Senators show up, and take a vote. By six to one, the appointment is confirmed. > > They’ll wish they had re-thought that “remains in session” thing. Please tell me you’re joking. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [April 1, 2016, 12:41am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/32 "2016-04-01T00:41:36Z")
The basis of parliamentary procedure is that things are decided by voting on them. The practice is one of well-defined rules that have been hammered out over a long time. Suggesting that a tacit approval loophole exists is contrary to both the letter and spirit of the law. I don’t have a Yale law degree, but this sounds like complete foolishness to me. **Trinopus** , someone figured out that loophole a few thousand years ago and solved it with [quorum](https://en.wikipedia.org/wiki/Quorum). ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 1, 2016, 1:09am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/33 "2016-04-01T01:09:49Z")
> [@Lemur866](#): > > If Garland would make a terrible supreme court justice, then the Senate can get together and tell Obama to stuff it. Since we’re changing the rules, do they have to hold any hearings? Can they just vote? Or maybe appoint a committee and have it vote and be the voice of the senate? ---
**Author:** ![magellan01](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@magellan01](https://boards.straightdope.com/u/magellan01)\ **Post date:** [April 1, 2016, 1:12am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/34 "2016-04-01T01:12:19Z")
> [@Little\_Nemo](#): > > To me, the Senate choosing to refuse to hold a vote on a nomination is the same as voting against the nomination. They’re both a means of denying the necessary consent, although one is more cowardly. I think that’s the most logical interpretation. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [April 1, 2016, 1:16am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/35 "2016-04-01T01:16:01Z")
> [@John\_Mace](#): > > Please tell me you’re joking. Totally serious. Please consider posting something with content, instead of an empty snark. > [@iamthewalrus\_3](#): > > . . . **Trinopus** , someone figured out that loophole a few thousand years ago and solved it with [quorum](https://en.wikipedia.org/wiki/Quorum). There’s a way around that, too: if no one asks for a quorum call. Lots of meetings have started with a quorum, and yet, as the night grows old, people have left the meeting, reducing it below the quorum number. So long as no one calls attention to this, the meeting can continue holding votes. ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [April 1, 2016, 1:18am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/36 "2016-04-01T01:18:06Z")
Something people need to remember whenever they suggest any kind of authoritarian shenanigans: **One day, your opponents will have the same power.** If you don’t want President Trump to be able to do something in a year’s time, you need to not let President Obama do it today. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [April 1, 2016, 1:18am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/37 "2016-04-01T01:18:13Z")
> [@magellan01](#): > > Since we’re changing the rules, do they have to hold any hearings? Can they just vote? Or maybe appoint a committee and have it vote and be the voice of the senate? What rules are we changing? I don’t understand what rule says that the Senate can just ignore a nomination by the President that requires Senate approval. Vote yes, or vote no. It’s really that simple. I don’t support stalling, I don’t support a single Senator being able to block a nomination, and I don’t support a filibuster of a nomination. I didn’t support it when Democrats did it, and I didn’t support it when Republicans did it. And I don’t support it now. ---
**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:** [April 1, 2016, 1:34am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/38 "2016-04-01T01:34:24Z")
> [@Bryan\_Ekers](#): > > Worst case, the president arranges for enough members of congress to be arrested on various charges so he can prevent them from forming a quorum, then does whatever he likes. Article I of the US Constitution provides members of Congress with some protection from arrest. Should any president fly in the face of that I would hope the Congress would impeach the president forthwith, regardless of party. > [@Article I Section 6 of the US Constitution](#): > > The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. > [@Frank](#): > > Could someone spell out for me the history of the Senate and tacit consent. Right off the top of my head, I know of no situation, ever, in which a failure of the Senate to act on an issue has been regarded as tacit consent on that issue by the Senate. > > Educate me! Interestingly, tacit consent was considered by the Framers of the Constitution. They considered several options for seating judges and political appointees, including nomination by the president and automatic confirmation unless the Senate voted to reject the nominee. Of course the Framers ultimately rejected that notion by choosing a model based on that in place in the Massachusetts Constitution of 1780. In the Massachusetts model the executive (the governor in this case) would make appointments for various positions. The appointment was then passed to the state Privy Council (not a part of the legislature but rather a group of advisers somewhat analogous to the president’s cabinet) for confirmation. It was then the practice for the Privy Council to vote to confirm a nomination or to not vote at all to reject a nominee. Yeah, the whole Advise and Consent process in the US Constitution was based on a model where consent was withheld by not holding a vote. ---
**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:** [April 1, 2016, 1:38am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/39 "2016-04-01T01:38:00Z")
> [@magellan01](#): > > Since we’re changing the rules, do they have to hold any hearings? Can they just vote? **Or maybe appoint a committee and have it vote and be the voice of the senate?** **Emphasis added** The Senate sets its own rules. There is nothing that explicitly prohibits the Senate from passing a rule saying something to the effect that the vote of the Senate Judiciary Committee shall be the deciding factor for nominations and that no vote of the full Senate is required. Not gonna happen. But theoretically possible. ---
**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:** [April 1, 2016, 1:40am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/40 "2016-04-01T01:40:24Z")
> [@Trinopus](#): > > Please consider posting something with content… You first! [Previous page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=1) [Next page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=3)