# Textualist meaning of "shall" re SC. **URL:** \ **Category:** Great Debates\ **Created:** [February 21, 2016, 4:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697 "2016-02-21T16:15:32Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [February 25, 2016, 11:10pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/101 "2016-02-25T23:10:10Z")
> [@drad\_dog](#): > > He knows in advance because the rebupkis said they would not approve anyone. He hasn’t shown he wants to nominate unreasonable persons at all. Where do you get that? > > You are blaming the victim. nice try What the hell? Who’s the victim? Obama? That’s amazing. However, the standard for advice and consent isn’t “Well, the President’s nominations are not unreasonable, so we must consent.” Admittedly, that has been the tradition for nearly 200 years, but for most of that 200 years judges were at the Supreme Court doing lawyerly stuff. When they start injecting themselves into what was traditionally part of the democratic process, then it is only right that things change to where the democratic branches of government start to take a larger role in the process. Why can’t the Senate decide that anyone that Obama nominates is simply too liberal for consideration and then withhold consent and advise that he appoints Luttig? You may not like it, but that it a legitimate part of advice and consent. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 25, 2016, 11:19pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/102 "2016-02-25T23:19:01Z")
The text states that Congress is required to consent to whomever the president nominates. Read it up folks it’s there in black and white (or black and beige or brown and beige or whatever). ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 25, 2016, 11:29pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/103 "2016-02-25T23:29:21Z")
> [@UltraVires](#): > > What the hell? Who’s the victim? Obama? That’s amazing. > > However, the standard for advice and consent isn’t “Well, the President’s nominations are not unreasonable, so we must consent.” Admittedly, that has been the tradition for nearly 200 years, but for most of that 200 years judges were at the Supreme Court doing lawyerly stuff. When they start injecting themselves into what was traditionally part of the democratic process, then it is only right that things change to where the democratic branches of government start to take a larger role in the process. > > Why can’t the Senate decide that anyone that Obama nominates is simply too liberal for consideration and then withhold consent and advise that he appoints Luttig? You may not like it, but that it a legitimate part of advice and consent. Are you making an argument here? Please articulate it. I think you are worried that 'consent" is a sign of approval of a democrat, or their nominee? It means you have hearings and vote. If you are saying they shouldn’t have to hear anyone because it’s Obama, that’s wrong. No one has said they have to vote to approve anyone. Scalia has been dead less than 2 weeks. Obama is preparing to nominate, and going through preliminaries. You got a problem with that? State what it is. They have to do their job. You can’t stop a nomination by prior restraint. Even if it was legal the american people would not tolerate you or your party for long afterwards. It’s your party dude. You can do what you want, but you are running out of good outcomes by acting out with tantrums, and it will be humiliating and cripple you for any future elections. PS who the hell is Luttig. Do I need to care? ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 26, 2016, 12:34am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/104 "2016-02-26T00:34:19Z")
> [@drad\_dog](#): > > No one has said they have to vote to approve anyone. > [@Frylock](#): > > The text states that Congress is required to consent to whomever the president nominates. But then there’s this: > [@drad\_dog](#): > > Consent means voting someone down too. You think consent can be voting someone down - so I guess when you use words in non-standard ways you can make them mean whatever you want. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 26, 2016, 1:09am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/105 "2016-02-26T01:09:12Z")
> [@Bone](#): > > But then there’s this: > > You think consent can be voting someone down - so I guess when you use words in non-standard ways you can make them mean whatever you want. I’m not Frylock. You may ask him about his statement. I have stated what I think they are supposed to do. Saying that they don’t need to have hearings is nonsense. Stating that they must approve a certain individual is nonsense. Saying that this means they can exercise prior restraint and prevent a nomination by the president is nonsense. So make your point. ---
**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:** [February 26, 2016, 1:25am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/106 "2016-02-26T01:25:05Z")
> [@drad\_dog](#): > > I’m not Frylock. You may ask him about his statement. > > I have stated what I think they are supposed to do. > > Saying that they don’t need to have hearings is nonsense. Stating that they must approve a certain individual is nonsense. Saying that this means they can exercise prior restraint and prevent a nomination by the president is nonsense. > > So make your point. It’s really nice that you think that. But it’s not supported by the plain text, which is what we are discussing in this thread. Perhaps you should start another thread where people opine about what it should say, as opposed to what it does say. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 26, 2016, 1:35am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/107 "2016-02-26T01:35:50Z")
> [@drad\_dog](#): > > I’m not Frylock. You may ask him about his statement. You aren’t Frylock, but you did say “no one”. Frylock’s statement falsifies your statement. You know, based on the text. ---
**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:** [February 26, 2016, 1:37am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/108 "2016-02-26T01:37:47Z")
> [@drad\_dog](#): > > … > I have stated what I think they are supposed to do. > … What they are _supposed to do_ and what they are constitutionally _required to do_ may be two very different things. Many agree that the Senate is supposed to put on their collective big boy pants, go through hearings at the committee level, debate the issue on the Senate floor, and finally vote up or down. Do it even if they have to pinch their nose like a petulant child taking his medicine. But the Senate is not constitutionally required to do any of that. If they want to hold their collective breath until they get their way they are permitted to do so. Just because I want it to be so does not make it so. Projecting your desires about how things ought to be into the Constitution is not wise. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 26, 2016, 2:02am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/109 "2016-02-26T02:02:12Z")
> [@UltraVires](#): > > What the hell? Who’s the victim? Obama? That’s amazing. > > However, the standard for advice and consent isn’t “Well, the President’s nominations are not unreasonable, so we must consent.” Admittedly, that has been the tradition for nearly 200 years, but for most of that 200 years judges were at the Supreme Court doing lawyerly stuff. When they start injecting themselves into what was traditionally part of the democratic process, then it is only right that things change to where the democratic branches of government start to take a larger role in the process. > > Why can’t the Senate decide that anyone that Obama nominates is simply too liberal for consideration and then withhold consent and advise that he appoints Luttig? You may not like it, but that it a legitimate part of advice and consent. I don’t know who you all are talking to but I was responding to the above text. Good luck and hope you get wise. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 26, 2016, 2:30pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/110 "2016-02-26T14:30:47Z")
> [@Frylock](#): > > The text states that Congress is required to consent to whomever the president nominates. Read it up folks it’s there in black and white (or black and beige or brown and beige or whatever). No it doesn’t. ‘I can have sex with any woman with her consent’ doesn’t mean ‘therefore any woman is required to have sex with me’, and frankly the idea is nonsensical. Regards, Shodan ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 26, 2016, 3:54pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/111 "2016-02-26T15:54:30Z")
But ‘shall’. The text specifies that consent shall be given. (And advice.) ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [February 26, 2016, 4:41pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/112 "2016-02-26T16:41:17Z")
> [@Frylock](#): > > But ‘shall’. The text specifies that consent shall be given. (And advice.) Then the founders wouldn’t have require that two branches of the government select the members of the third. If “consent shall be given” by the Senate, then there is no reason for the Senate to involved in the process at all. Since the Senate is require to be part of the nominating process, and several Presidential nominees have failed to become Supreme Court Justices, it stands to reason that “shall” does not mean the Senate must rubberstamp the President’s selection. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 26, 2016, 5:42pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/113 "2016-02-26T17:42:33Z")
> [@Frylock](#): > > But ‘shall’. The text specifies that consent shall be given. (And advice.) No, it doesn’t. The word “shall” in the Constitution refers to what the President shall do, not the Senate. The President _shall_ nominate and _shall_ appoint. Nothing there whatever about the Senate _shall_ consent, and the appointment is conditional on the advice and consent of the Senate. Again - I will take you out to dinner, and, with your consent, shall have sex with you. Therefore, consent has to be given. No, it doesn’t. Regards, Shodan ---
**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:** [February 26, 2016, 6:34pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/114 "2016-02-26T18:34:57Z")
> [@Frylock](#): > > But ‘shall’. The text specifies that consent shall be given. (And advice.) Look in the same clause in the Constitution. Just before the stuff about appointment of ambassadors and judges and stuff you will see parallel language being used about providing advice and consent to approve a treaty. Yet the Senate has declined to ratify, or even take any action at all, on dozens of treaties. Clearly “advice and consent” means that the Senate can decline to consent. ---
**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:** [February 26, 2016, 6:38pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/115 "2016-02-26T18:38:20Z")
> [@Iggy](#): > > Look in the same clause in the Constitution. Just before the stuff about appointment of ambassadors and judges and stuff you will see parallel language being used about providing advice and consent to approved treaty. > > Yet the Senate has declined to ratify, or even take any action at all, on dozens of treaties. > > Clearly “advice and consent” means that the Senate can decline to consent. Look at the quote I posted from the Senate website. I think it clearly states the interpretation: The president appoints justices who have received the consent of the Senate. No consent = no appointment. ---
**Author:** ![drad\_dog](https://avatars.discourse-cdn.com/v4/letter/d/aeb1de/32.png) [@drad\_dog](https://boards.straightdope.com/u/drad_dog)\ **Post date:** [February 26, 2016, 7:19pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/116 "2016-02-26T19:19:08Z")
OK geniuses, you batted that one around a bit. Refusal to take part in the process via tantrum (Does not =) Having hearings, not consenting to a nominee, and continuing to engage in the process as the constitution provides. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [February 26, 2016, 7:52pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/117 "2016-02-26T19:52:50Z")
The Constitution provides that the President shall nominate someone. He hasn’t done that, and it is the necessary first part of the process. Regards, Shodan ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 26, 2016, 8:15pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/118 "2016-02-26T20:15:41Z")
> [@doorhinge](#): > > Then the founders wouldn’t have require that two branches of the government select the members of the third. It’s not our job to read their mind–we can only read their text. ---
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [February 26, 2016, 8:16pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/119 "2016-02-26T20:16:43Z")
> [@Iggy](#): > > Look in the same clause in the Constitution. Just before the stuff about appointment of ambassadors and judges and stuff you will see parallel language being used about providing advice and consent to approve a treaty. > > Yet the Senate has declined to ratify, or even take any action at all, on dozens of treaties. I know, which is completely unconstitutional! ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [February 26, 2016, 8:45pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/120 "2016-02-26T20:45:57Z")
> [@Frylock](#): > > I know, which is completely unconstitutional! You do realize that the three branches of government are co-equal, correct? [Previous page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=5) [Next page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=7)