I won’t award you two warnings in a row. But I certainly could here. Don’t imply that other posters are lying in any way.
Mea culpa. It really wasn’t meant literally.
Man, I’m collecting more points than I have in decades on my driver’s license.
. . . Nah. Won’t work. We can’t take that approach here. The Senate Pubs have pre-empted it.
In this Washington Post opinion piece, a former clerk to SC Justice Thurgood Marshall argues that Obama should appoint Garland to the Court after a reasonable amount of time, under the theory that the Senate will have forfeited its right to advise and consent.
[QUOTE=Gregory Diskant]
It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right …(snip)… Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution …(snip)… It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.
[/QUOTE]
I think you’re on double secret probation now dude
I suspect that Garland would refuse to be appointed in that circumstance.
The time has come for someone to put his foot down. And that foot is me.
Mostly that, plus it would also give the GOP another chance to scream “Unconstitutional”, “Dictator!”, “He parks in handicapped spots!” or whatever that could tip some undecideds toward voting Republican. It’s better leaving the ball in the GOP’s court for now and giving them a chance to screw up again.
Actually, if the President can claim that right, the Chief Justice can claim the right to deny Garland a seat. What’s Obama gonna do, sue?
No but he’s commander in chief. He might have priority in the use of forces. OK scholars, go to it…
Each branch has primary authority over its own membership. Congress decides who sits in Congress and the President(for the most part) decides who is in his administration. The Supreme Court has so far not claimed such a power, but it would be logically consistent for the judicial branch to have similar authority, especially if the other two branches have not agreed to a nomination. Roberts could just say, “As Chief Justice, I decide who can and can’t sit on this court in the absence of a clear constitutional procedure. And I say nay.”
I don’t care which Justice or group of them it is, I’d be willing to bet that none of them would want to allow the precedent of a President denying the Senate its Constitutionally-bestowed power.
Quick question: were all those lower court judges that never got a vote under the Bush administration, were their nominations ever officially withdrawn? Seems to me that if we’re going to play the “novel interpretation of the Constitution” game that the Republican Senate could simply vote to approve all the Bush judges that never got a vote and seat them.
The writer of that article must also be forgetting the the Supreme Court only a couple of years ago voided OBama’s NLRB appointments that bypassed the Senate. And those were recess appointments. The odds that SCOTUS would allow the PResident to appoint a Supreme Court Justice without advice and consent are very low indeed. Their NLRB decision was unanimous.
Those nominations were returned to the President as not acted upon pursuant to Senate Rule XXXI, Section 6. No further action will be taken unless the nominee is again submitted by the President.
The problem with that theory is that such method was explicitly considered and rejected by the Framers of the Constitution. Any such effort would be roundly rejected by the High Court, assuming they would take up a case and not merely escort Garland out of the building.
And the mere suggestion makes me wonder how the author of that opinion piece ever managed to clerk for the Supreme Court and why the Washington Post would ever publish such an opinion piece which supports a patently unconstitutional approach.
Not going to happen – either the pressure will build until the Senate relents and holds a hearing, or it won’t, and Garland won’t get the opening.
I imagine the Chief Justice Roberts would have him removed from the building. Then what? Does Obama send in the National Guard?
Also not going to happen because Obama isn’t that keen on getting Garland on the Court. If it happens, fine, but his main goal was to help the Republicans look like assholes. Mission accomplished.
It’s not “patently unconstitutional” at all, just novel. The customary requirement for active consent is no more or less obvious a reading than one in which a lack of action is deemed tacit consent. Tradition and custom dictate that explicit consent is required, but they also dictate that the Senate must act on a nomination (and yes, I am aware of the five prior instances in which they did not).