Indeed the Founding Fathers considered an approach where appointments would be confirmed by default unless some affirmative legislative action was taken to reject the nominee. They ultimately rejected that approach.
I somehow doubt that the Senate would vote in favor of a Constitutional Amendment to change the status quo since that would downplay the power of the Senate. Shall we add this idea to a list of proposed amendments to be considered by a Constitutional Convention, should one ever occur?
I disagree that it’s a crisis. Sure, it could become a crisis. But if it starts taking a few years to appoint a new Supreme Court nominee, that’s an inconvenience, not a crisis.
And a system that can end up in partial gridlock is arguably a feature, not a bug. Government shouldn’t move quickly when there isn’t general agreement on the direction. And for all the talk about much opposition there is now (which is true), 219 laws have been passed since January 6th this year. That’s lower than historical averages, but it’s hardly do-nothing. There are apparently plenty of things that they can agree on enough to get passed.
I believe even during a pro-forma session, a Democrat can move for a Call of the House. If they want to say they’re not in recess then make all 100 of them show up. At least it’ll inconvenience the Pubs and I’ll bet Kaine would love to have them arrested.
Isn’t there a recess by definition between Congresses? Surely Obama could just name a long list of federal judges to come in right before the new Congress sits.
Can’t find a cite handy but I remember from an earlier discussion with cites that no, he can’t. It was a tactic used by a President or two but iirc that was also quashed when Obama went to court over his “recess” appointments.
How you choose to vote is completely immaterial to the question at hand. You would not change who you voted for because some guy on message board made a suggestion you didn’t like.
The underlying question in your rhetoric is “Wouldn’t this make Clinton as bad as Trump?” And the answer is, no. This is only suggested if we are in a full constitutional crisis and something needs to happen to restore the ability of the judicial branch to function. It would be restoring the rule of law by taking an extralegal action.
The fear with Trump is that he is so bad that he would deliberately create a constitutional crisis with his own actions. He wouldn’t do it because the government was broken, but actively break it to get his own way.
We want a president we could trust to value our democratic institution enough to try and fix it if it breaks, and not someone like Trump who would use it to grant himself more power. That’s the reason not to elect Trump.
A tactic used to handle a crisis is not the same thing as that same tactic being used to usurp power.
Does that mean it’s a good tactic? Well, that would be what you two should argue rather than this false equivalency.
They considered and rejected MANY options. It is reasonable to assume that the rejected options are not what they meant by Advise and Consent. And they did specifically consider and reject various forms of the Executive picks and the Legislature only acts if to veto the selection.
This was a hot topic. Alexander Hamilton wrote on it in Federalist Papers No. 76 just after he left to return home as he thought the appointment by default approach had won the argument. Those remaining continued to deliberate the matter and changed their minds in the following days.
Because the normal confirmation process is subject to filibuster, so even if the Dems have a small majority in the Senate, a nomination is subject to filibuster. Ending a filibuster by cloture requires a super-majority of 60.
My question was whether a motion to adjourn for a month, which would create a recess for the purpose of appointments, is also subject to filibuster. The normal procedural rule (in Robert’s Rules, for instance) is that a motion to adjourn in always in order and never subject to debate, which is what filibuster is.
So, if they have a small majority, would a motion to adjourn be subject to a straight up-and-down vote, creating an opportunity for a recess appointment, or would adjournment be subject to filibuster by the Republican minority, just like a motion to hold hearings on a Supreme Court nominee?
But then Iggy responded:
So that makes it sound like even if the Dems have a small majority in the Senate they can’t adjourn for more than three days without the House agreeing, so they couldn’t go into recess for more than three days.
Except, the Constitution then gives the President the power to resolve a dispute between the two Houses:
[QUOTE=Article II, Section 3, Clause 3]
he may, on extraordinary Occasions, convene both Houses, or either of them, and 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;
[/QUOTE]
So, I come back to my original question: is a motion to adjourn subject to the filibuster? because if it is not, then there is a procedural route for the Dems with a slight majority in the Senate, acting with a Democratic President, to cause a recess of more than three days:
Democratic Senate passes a motion to adjourn for two months. “Hey, we’ve been working hard!” wink wink, nudge nudge.
Republican House asserts that they are not adjourning. “Whoa! We’re not agreeing to that! adjourn for a long weekend, maybe, but that’s it! Three days, max! See you slackers on Tuesday!” :mad:
Democratic President says, “Exercising my constitutional authority to resolve this school yard fight, I’m going to, oh, I don’t know, go with the Senate. You all deserve a nice holiday. See you in two months.”
Democratic Senators bugger off for a well-earned two month vacation.
Democratic President says: “Hey, looky-here! The Senate’s in recess, for more than the three days that the SCOTUS was talking about. Guess that means I can appoint a recess Justice to the Supreme Court!” Pulls out magic recess appointing wand, whacks Barry Obama with it, and says, “Welcome to the Supreme Court, Associate Justice Obama!”
What Clinton could or would do is one question … but what would or could the Court itself do? I doubt that even Alito would be happy with maintaining the status quo and even less happy with the court being allowed to further whither. Would it bias Kennedy in close decisions? Might even Roberts allow his annoyance to impact rulings?
The reason I agree with the “they need to advise!!” crowd is that with the not-doing-anything tactic, no particular Republican Senator needs to vote opposite of a previous vote, or otherwise do anything besides just not bring it up.
If they were to hold a vote, those Senators would have to vote against a nominee without a hearing (has that ever happened?) or they would have to hold hearings, and all those long drawn out stupid questions would be all over the news, making them look bad. If, in the end they vote against him after voting for him recently, that looks bad too. This is the least-exposure way of dealing with it.
Could the House & Senate pass a law that says “the senate will begin hearings within 90 days or the appointment will automatically be affirmed”? I know a law could be changed later, but in a case like this they would have to vote to get rid of the law, vote against the judge, or let the appointment go through.
Could the Dem Senators threaten to filibuster everything until there is a hearing date set for the judge?
If the Republicans choose to continue this tactic, then they won’t even bother to give a reason. They’ll just do it.
And if they do so, then the only possible response from the President would be to nominate a justice, and then after a reasonable delay to publicly declare that, the Senate having chosen not to vote down the nominee as is their Constitutional right, that the nominee is confirmed in accordance with the US Constitution.
This would not be against any precedent. Indeed, this is exactly what every previous President has done who has been faced with this situation. It would be rather ad-hoc, but that’s a necessary feature of a system based on a vague and poorly-written Constitution like ours. Every time that our government actually functions at all is a result of someone in history making an ad hoc assumption like this and rolling with it.
Yes. Many times. Committee hearings are a relatively recent invention. In the olden days the Senate would often vote on a nomination, up or down, with no hearing at all.
Certainly they could pass a law. But it would get messy once someone challenged it (and some Senator certainly would challenge it eventually.)
The Constitution clearly grants the Senate, and the Senate alone, the power to Advise and Consent. A law would put the House and possibly the President into the mix. Not sure how the Court would look upon such a matter.
The Congress does regularly defer certain issues to the Executive branch which they could retain for control by the Congress. (i.e. Obamacare requires minimum coverage but defers to the Secretary of HHS to determine what must be covered to meet minimum coverage requirements.) So it is possible to pass the buck from one branch of government to another, but maybe not for a power that is constitutionally vested in one branch.
Sure, they could. And the Republicans could amend the rules, if they dare. The question is how far each side wants to push it and what kind of precedent they want to follow or set.
Nominations have been bogged down in the Senate for years before. Hard to imagine that would happen if the President merely had to decide he had waited long enough and was going to sign articles of appointment to the position despite lack of action from the Senate.
Again, the Founders explicitly considered and rejected confirmation by default. Such a process would seem to clearly violate past precedent.
How is this provision at all vague? The president can appoint someone to that post with the consent of the Senate; as far as I can tell, the Senate hasn’t consented. I’ve seen the Senate consent to stuff like that before; I know what it looked like; was I out sick the day we declared that silence now equals consent?
IS there any set of actions or inactions that the Senate could do that would constitute abdication of their role to advise and consent? Any outrageous hypothetical that would justify the Court ruling that in the persistent absence of Senate advise the Executive was entitled to appoint?
I’m thinking the playing out not only persistently refusing to hold hearing on this nominee but declaring that they will not consider ANY nominee that the opposition party’s executive submits no matter how matter Supremes die off or retire.
