# 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:** 3
**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, 1:42am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/41 "2016-04-01T01:42:45Z")
> [@Lemur866](#): > > … > If Garland would make a terrible supreme court justice, then the Senate can get together and tell Obama to stuff it. If he would make a good justice, then they should confirm him. Refusing to hold a vote on the matter is unprecedented. And just because Joe Biden once said something stupid that doesn’t mean you should follow his stupid ideas. > … We’ve done this before. It is not unprecedented, but it has been a long time since the Senate refused to hold a vote on a Supreme Court nomination. But the Joe Biden statement that has oft been cited is only a small part of a rather eloquent speech he gave. He elaborated that the Senate was specifically chosen as the body to confirm nominations for a variety of reasons, not the least of which is that the Founders knew the Senate gave a greater voice to the minority and thus nominations could be more easily stalled. It was a feature, not a bug. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [April 1, 2016, 1:45am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/42 "2016-04-01T01:45:10Z")
> [@Iggy](#): > > 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. Sure, if enough of them are free to gather, form a quorum, and vote for impeachment. It’s certainly an unlikely scenario in the United States, I cheerfully admit, but other countries have seen executives seize and consolidate power through arrest and intimidation of the legislature. The notion that congress implicitly agrees to whatever it does not explicitly refute is a tad unchecked and unbalanced. It’d become in the executive’s interest to silence congress by any means available and necessary. Naturally, this wouldn’t fly in the U.S. unless the president is particularly popular and the congress particularly unpopular, so until you get a particularly popular president, I’d guess you’re okay. ---
**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:** [April 1, 2016, 1:53am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/43 "2016-04-01T01:53:41Z")
> [@Iggy](#): > > 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. Interesting. Cite? ---
**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, 1:56am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/44 "2016-04-01T01:56:20Z")
> [@Folacin](#): > > … > 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? 28 U.S.C. § 1 sets the quorum of the Supreme Court as 6. So it is a law, and could be amended using the normal law making process. > [@28 U.S.C. § 1](#): > > The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. ---
**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, 2:03am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/45 "2016-04-01T02:03:37Z")
> [@Sage\_Rat](#): > > Interesting. Cite? Rather [long PDF](http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf) TOWARD THE FRAMERS’ UNDERSTANDING OF “ADVICE AND CONSENT”: A HISTORICAL AND TEXTUAL INQUIRY by ADAM J. WHITE\* ---
**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, 2:48am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/46 "2016-04-01T02:48:15Z")
> [@John\_Mace](#): > > You first! Okay: all we need is 51 Senators for a quorum. 2/3 of that is only 34. It could work! A surprise session! It’d be their own fault for not recessing like any honest legislative body. Sure, it requires a handful of Republicans, but if we promise them free drinks… (Also, if the House and Senate disagree on recessing, the President can recess them by decree…something no President has ever done… Then he gets all the recess appointments he wants…) Now it’s your turn. (You promised.) ---
**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, 2:50am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/47 "2016-04-01T02:50:58Z")
> [@Bryan\_Ekers](#): > > . . . other countries have seen executives seize and consolidate power through arrest and intimidation of the legislature. . . . One of the most outrageous example was Boris Yeltsin ordering Russian Army tanks to open fire on the Parliament building. You don’t get much more overt than that! ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [April 1, 2016, 4:53am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/48 "2016-04-01T04:53:08Z")
> [@Grumman](#): > > 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. Of course, I have no problem with President Trump being able to do this in a year’s time, because the only way this precedent gets to see use is if the senate is being a bunch of unconscionable chickenshits. Seriously, the “precedent” this would set is so slim that it would almost never see use. Can you imagine a democratic congress objecting to a presidential nominee but being too politically cowardly to hold a hearing and vote on them? If Trump proposed a moderate conservative judge, and the democrats said, “Nope, we wait on the _next_ presidential election, we aren’t even going to hold hearings”, then the unreasonable party here is the democrats and they _should_ be bypassed. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 1, 2016, 4:58am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/49 "2016-04-01T04:58:29Z")
> [@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. Nonsense. Tacit nomination isn’t even really a thing, anywhere. There is a huge difference between applying an accepted principle (tacit consent) in a novel way and making one up out of thin air (tacit nomination). ---
**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, 5:03am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/50 "2016-04-01T05:03:58Z")
> [@Trinopus](#): > > Okay: all we need is 51 Senators for a quorum. 2/3 of that is only 34. > > It could work! A surprise session! It’d be their own fault for not recessing like any honest legislative body. > > Sure, it requires a handful of Republicans, but if we promise them free drinks… > > (Also, if the House and Senate disagree on recessing, the President can recess them by decree…something no President has ever done… Then he gets all the recess appointments he wants…) > > Now it’s your turn. (You promised.) I didn’t actually promise, but since you asked so nicely 🙂 It’s the quorum issue that was already brought up. You, yourself, acknowledged that the scheme relied on: > [@](#): > > if no one asks for a quorum call That’s an if as big as the US debt. [Any senator can at any time ask for a quorum call](http://www.rules.senate.gov/public/index.cfm?p=RuleVI), and the Republican left to “bang the gavel” isn’t going to miss this obvious tactic. Seriously, do you think this has never happened because no one has ever thought of it before, or that it’s just trivially simple to counter? ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 1, 2016, 5:08am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/51 "2016-04-01T05:08:56Z")
> [@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. While I’m in agreement with you that the Senate is being truant in the matter of Judge Garland’s nomination, the Constitution clearly provides the Senate a **privileged role** , and NOT a **mandate**. Would that the Framers had thought to invent the “pocket rejection” for Senate confirmations when they invented the pocket veto for legislation. But they didn’t. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 1, 2016, 5:17am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/52 "2016-04-01T05:17:01Z")
> [@Sage\_Rat](#): > > So the question purely becomes what makes the most sense from a reading of the Constitution. Now, granted, the writers didn’t expect this sort of outcome, **so you could say that there’s nothing to look at in terms of determining their intent.** But since they didn’t expect this sort of thing to ever happen, you could argue that their “intent” was that the Legislature would deliberate in a reasonable amount of time in all cases. Delaying wasn’t a check to power that was written in. THIS LOOKS LIKE A JOB FOR ANTONIN SCAL-- oh, wait. Dang. ---
**Author:** ![bengangmo](https://avatars.discourse-cdn.com/v4/letter/b/50afbb/32.png) [@bengangmo](https://boards.straightdope.com/u/bengangmo)\ **Post date:** [April 1, 2016, 5:20am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/53 "2016-04-01T05:20:22Z")
> [@John\_Mace](#): > > I didn’t actually promise, but since you asked so nicely 🙂 > > It’s the quorum issue that was already brought up. You, yourself, acknowledged that the scheme relied on: > > That’s an if as big as the US debt. [Any senator can at any time ask for a quorum call](http://www.rules.senate.gov/public/index.cfm?p=RuleVI), and the Republican left to “bang the gavel” isn’t going to miss this obvious tactic. Seriously, do you think this has never happened because no one has ever thought of it before, or that it’s just trivially simple to counter? yeah…and you can be sure that no Republican is ever going to consider tacit support by not employing such a tactic then pleading ignorance or confusion? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [April 1, 2016, 5:31am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/54 "2016-04-01T05:31:10Z")
Democratic norms and institutions can break down to the point that solutions that aren’t strictly within the confines of the law can become attractive and even justified, but we’re really _not_ anywhere near that point yet. It’s a single seat on the court, and it’s been less than two months. It would be something else if we were talking about the court not having a quorum, and seats gathering dust for years, but we aren’t (yet). If that were to happen, maybe there would be enough general support for the president doing something that would have been unthinkable before the breakdown. Or maybe not. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [April 1, 2016, 5:58am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/55 "2016-04-01T05:58:15Z")
> [@Budget\_Player\_Cadet](#): > > Can you imagine a democratic congress objecting to a presidential nominee but being too politically cowardly to hold a hearing and vote on them? Yes, I can, because they did it, a lot, and recently. What you describe is _exactly_ what the judicial nominee filibusters were. Senate Democrats refused to hold / allow a vote on judicial nominees by Bush. > **[George W. Bush judicial appointment controversies](https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies)** > > During President George W. Bush's two term tenure in office, a few of his nominations for federal judgeships were blocked by the Senate Democrats either directly in the Senate Judiciary Committee or on the full Senate floor in various procedural moves, including the first use of a filibuster to block a Federal Appeals Court nominee. Republicans labeled it an unwarranted obstruction of professionally qualified judicial nominees. > Bush made 53 nominations for federal judgeships that were not confi... All this wailing and gnashing of teeth seems a tad pretentious, given the Democrats’ recent history of not allowing votes on judicial nominees. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [April 1, 2016, 6:08am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/56 "2016-04-01T06:08:06Z")
Here are some fun (and relevant) quotes: > [@](#): > > “It is important to realize that **it has not been unusual for the Senate to indicate its lack of approval for a nomination by just making sure that it never came to a vote on the merits**. As I said, 21 nominations to the court have failed to win Senate approval. But only nine of that number were rejected on a direct, up-and-down vote,” Griffin said, according to a May 10 New York Times op-ed by former Senate Majority Leader George Mitchell (D-ME). > [@](#): > > In response to a May 12 question from Sen. Robert Byrd (D-WV) on the Senate floor, Frist acknowledged that the Constitution does not require an up-or-down vote for all judicial nominees: “To the question, **does the Constitution say that every nominee of the President deserves an up-or-down vote, the answer is, no** , the language is not there.” Source: [http://mediamatters.org/research/2005/05/18/the-top-10-filibuster-falsehoods/133217](http://mediamatters.org/research/2005/05/18/the-top-10-filibuster-falsehoods/133217) This idea of “tacit consent” is certainly a novel one. ---
**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, 7:29am UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/57 "2016-04-01T07:29:10Z")
> [@Trinopus](#): > > Okay: all we need is 51 Senators for a quorum. 2/3 of that is only 34. > > It could work! A surprise session! It’d be their own fault for not recessing like any honest legislative body. > > Sure, it requires a handful of Republicans, but if we promise them free drinks… > > (Also, if the House and Senate disagree on recessing, the President can recess them by decree…something no President has ever done… Then he gets all the recess appointments he wants…) > > Now it’s your turn. (You promised.) So very much wrong here. You do realize that in order to get a quorum of 51 Senators not only would there have to be several Republicans present but also one of those Republicans would be the presiding officer? It’s not like they are going to sit silently and let Democrats run the show. And the Senate does not get to hold surprise sessions. It’s not like a group of Senators can just show up anywhere to conduct business or not notify all the Senators of a session. There are rules and procedures to prevent such foolishness. And the Supreme Court, in Canning v NLRB upheld the _pro forma_ sessions as being sufficient to prevent recess appointments. A recess longer than 10 days would be needed before recess nominations could take place. And the Senate cannot constitutionally recess more than three days without consent of the House. And the president cannot just recess the Senate as he sees fit. This power is limited to those circumstances in which “in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper” So this only works if the House and Senate are in disagreement. Zero chance this Republican controlled House and Republican controlled Senate will disagree on recess and give Obama a free pass on recess nominations. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [April 1, 2016, 12:42pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/58 "2016-04-01T12:42:26Z")
> [@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. For other issues, the first example that occurs to me is if the Congress doesn’t try to override a Presidential veto. But as to judicial nominations, no, tacit consent is not a thing, and never has been, as **HurricaneDitka** ’s cite shows. If blocking a nomination is consent, then the concept of consent lacks meaning. Obviously the writer of the article in the OP is saying IOKIADDI, and every Democrat will instantly flip-flop when the shoe is on the other foot (and deny doing so) but for those who are arguing on principle, there is no such thing as tacit consent when it comes to Supreme Court nominations. And there is no difference between making up a clause in the Constitution that requires tacit consent, and making up a clause that requires tacit nomination. If the Constitution can be “interpreted” to mean “whatever I like”, then it can be interpreted to mean anything. ‘The Constitution says the Senate has to give its consent, and if they don’t, they did’ is no more or less meaningless than ‘the President has to nominate candidates, and if he doesn’t, he did’. Regards, Shodan ---
**Author:** ![Arrogantly\_Ignorant](https://avatars.discourse-cdn.com/v4/letter/a/b4bc9f/32.png) [@Arrogantly\_Ignorant](https://boards.straightdope.com/u/Arrogantly_Ignorant)\ **Post date:** [April 1, 2016, 1:27pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/59 "2016-04-01T13:27:41Z")
> [@HurricaneDitka](#): > > Yes, I can, because they did it, a lot, and recently. What you describe is _exactly_ what the judicial nominee filibusters were. Senate Democrats refused to hold / allow a vote on judicial nominees by Bush. > > [George W. Bush judicial appointment controversies - Wikipedia](https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies) > > All this wailing and gnashing of teeth seems a tad pretentious, given the Democrats’ recent history of not allowing votes on judicial nominees. I know I’m not the one you responded to, but I thought I’d give my 2 cents. I think the key difference between the sources you cited and the current situation is the fact that the Senate is just not performing their duties. The Democrats filibustered nominees (so have Republicans, I believe) that they didn’t approve. That’s been an accepted (if annoying) political option for centuries. In fact, it’s an important one. The Senate should/does play a vital part in Supreme Court nominations and part of that is opposition, argument, and, ultimately, compromise. Unfortunately, over the years nominations have become less about the legitimate qualifications of the candidate, but if they’re loyal Democrat/sRepublicans. Which is the exact opposite of what (most) the Founders wanted. That’s not the 2016 Senate’s fault, but it is their fault that they’re refusing their political duty in favor of partisanship. Unlike filibustering they’re not just prolonging a vote; they’re stopping a discussion from even occurring. What’s more, it’s just bad governing. The Senate’s essentially letting a tier of our government proceed crippled. There’s a reason the number of Justices changed to an odd number less than 20 years after the Court was created. A slew of cases with a 4-4 gridlock will just create more stagnation. Also, frankly, the precedent this could establish frightens me. If the Democrats win the presidency and Congress stays the same, would you still support the Senate refusing to even hear the President’s nomination? The Senate’s actions potentially set up a future scenario where Congress refuses any other party’s nomination simply because of party affiliation, which would only further politicize the Supreme Court. That’s a horrible outcome for everyone involved. Honestly, all this BS is because the Republicans don’t want to let go of the Supreme Court. But, if they prolong this obfuscation for too long then they might lose the Presidency, the Court, and Congress. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 1, 2016, 1:30pm UTC](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757/60 "2016-04-01T13:30:19Z")
Personally, I still don’t see why Biden can’t just show up and call for an up-or-down vote. He is, after all, the person that the Constitution says should preside over the Senate, whenever he’s present. The President Pro Tem has no Constitutional status except when the Vice President is absent or acting as President. [Previous page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=2) [Next page](https://boards.straightdope.com/t/garland-should-just-sit-down-and-judge/750757.md?page=4)