# 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:** 9
**Author:** ![Frylock](https://avatars.discourse-cdn.com/v4/letter/f/ce7236/32.png) [@Frylock](https://boards.straightdope.com/u/Frylock)\ **Post date:** [March 1, 2016, 2:04pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/161 "2016-03-01T14:04:18Z")
> [@CarnalK](#): > > It looks pretty obvious to me that Frylock is joking. But I’ve been wrong before. Was joking. Was planning on making a point about the emptiness of textualism, but the joke got ahead of me. ---
**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:** [March 1, 2016, 6:10pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/162 "2016-03-01T18:10:14Z")
> [@Iggy](#): > > Well, this is the SDMB. It’s like our version of Rule 34. > > The Constitution requires a Supreme Court and specifically mentions a Chief Justice and speaks in the plural of judges so it assumes there will be more than one judge in the United States. How many more? Doesn’t say. > > That’s it. The rest of the details of the judicial system are left up to the law making process. How many inferior courts? How many justices on the Supreme Court? All up to the law making process and subject to change by passing a new law, not amending the Constitution. > > There is a Constitutional duty for the president to, with advice and consent of the Senate, appoint. The President is powerless to appoint without that advice and consent. > > We keep treating advice and consent as two different things. There is some benefit to thinking of it that way, but it really wasn’t envisioned that way by the Founders. The Senate either grants Advice and Consent, or denies Advice and Consent. Technically it does not offer advice and deny consent. > > Not quite sure I’m following the rest of the argument. There is no reason I can see to define those two words as the same act and if you do then you are in worse shape in your argument. I’m not sure what the kick is for some of you in continuing to assert against some straw man that is saying the senate needs to approve of some individual. Give it up. He doesn’t exist. If you decide you don’t want to participate as proscribed in the Constitution, in the POTUS duty, to advise and consent in search of a replacement justice, by refusing to have hearings, I think you are minimizing the definition of your duty in the constitution too far. Under that argument there very well my be a winnowing of the court to one or no justices. It’s not science fiction under your definitions. If you think voters are cynical now just wait until you block a duly elected POTUS from having a hearing on his nominee. You might as well scuttle the whole democracy thing. Oh yeah, they are… ---
**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 1, 2016, 6:46pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/163 "2016-03-01T18:46:46Z")
> [@Frylock](#): > > Was joking. Was planning on making a point about the emptiness of textualism, but the joke got ahead of me. Plus, it doesn’t speak to “the emptiness” of textualism either. As already noted, the president appoints, with and by the advice and consent of the Senate. Without those, he doesn’t appoint. ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [March 1, 2016, 8:11pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/164 "2016-03-01T20:11:00Z")
> [@Frylock](#): > > Was joking. Was planning on making a point about the emptiness of textualism, but the joke got ahead of me. Apologies for not getting the joke, but I would say that you’ve made the point obverse to the one you intended. Words and syntax have meaning, and there are readings that are simply not supported by the text. The rest is politics. As intended. ---
**Author:** ![bbonden](https://avatars.discourse-cdn.com/v4/letter/b/ecb155/32.png) [@bbonden](https://boards.straightdope.com/u/bbonden)\ **Post date:** [March 1, 2016, 8:34pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/165 "2016-03-01T20:34:23Z")
> [@drad\_dog](#): > > Under that argument there very well my be a winnowing of the court to one or no justices. It’s not science fiction under your definitions. Sure, that’s possible. Just as great men, advising a wildly popular President in the 1930s, thought it might be possible to expand the membership of the Supreme Court. The American people, who loved the President, thought otherwise. > [@drad\_dog](#): > > If you think voters are cynical now just wait until you block a duly elected POTUS from having a hearing on his nominee. You might as well scuttle the whole democracy thing. Oh yeah, they are… Well, maybe the voters will throw out Republican Senators who align with the leadership that refuses a hearing. Or maybe they will say, “hey, Obama and Biden took the same position when their party lacked the Presidency” and vote the current Republicans back in. Or maybe the voters don’t care about this particular issue nearly so much as the partisans and single-issue lobbies due. I can’t say. What I can say is that democracy is not being scuttled - it is core to the process, with the President, the presidential contenders and the Senate all staking out positions based on how they project November votes for Senate seats. ---
**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:** [March 1, 2016, 8:39pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/166 "2016-03-01T20:39:01Z")
> [@John\_Mace](#): > > Plus, it doesn’t speak to “the emptiness” of textualism either. As already noted, the president appoints, with and by the advice and consent of the Senate. Without those, he doesn’t appoint. I know, but can the president appoint without the senate? I haven’t been assured of it in the last 7 minutes and I am getting insecure. I just figured out what the preoccupation with this question is and how it relates to non-consensual sexual intercourse (besides the confusing of “textual” and “sextual”): You could get the impression that a large wedge thinks that to have a hearing on an Obama nominee would be being cuckholded. Look back at the thread and tell me there isn’t some kind of repetition compulsion here. Meanwhile no one addresses what the senates actual duty is. Anyone know what the rules of order are on nomination, and either not hearing or hearing, and then either not voting or voting? What is the chain of events? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 1, 2016, 11:44pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/167 "2016-03-01T23:44:42Z")
> [@drad\_dog](#): > > …If you decide you don’t want to participate as proscribed in the Constitution, in the POTUS duty, to advise and consent in search of a replacement justice, by refusing to have hearings, I think you are minimizing the definition of your duty in the constitution too far. > > …If you think voters are cynical now just wait until you block a duly elected POTUS from having a hearing on his nominee. You might as well scuttle the whole democracy thing. Oh yeah, they are… (post shortened) You think the U.S. Senate is minimizing the definition of their duty in the U.S. Constitution. Based on what? Your corrected copy of the U.S. Constitution? Based on past history, advise and consent obviously does not mean that the U.S. Senate MUST confirm a Presidential nominee for the SCOTUS. So what else do you have? Feelings? If you think voters are pissed now (outsiders Bernie and Trump are drawing big crowds who don’t seem to like the SSDD politics) wait until Obama nominates another gun-banning, pro-registration/confiscation progressive for the Supreme Court. 2nd Amendment supporters will be turning out to vote and it won’t be for anti-2nd Democrats. Obama could add a lost Presidency to his loss of control in the U.S. House and U.S. Senate. However, Obama is already known as the best firearms salesman ever, so he’s got that going for him. ---
**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:** [March 1, 2016, 11:58pm UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/168 "2016-03-01T23:58:07Z")
[Senate Rule XXXI](http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI) governs Proceedings on Nominations. The qualification is that it is up to the Senate’s Presiding officer to put the nomination on the agenda to begin with. That is the “unless otherwise ordered” phrase in the first section. See [Rule VII Section 3](http://www.rules.senate.gov/public/index.cfm?p=RuleVII) where “[t]he Presiding Officer may at any time lay … before the Senate, any bill or other matter sent to the Senate by the President…” > [@](#): > > the final question on every nomination shall be, “Will the Senate advise and consent to this nomination?” Of note, if and when the Senate votes, they vote to “advice and consent”. One concept. So even if they vote no, they are voting no to giving “advice and consent”. Which, in the colloquial, is giving the president the advice that this nominee is not acceptable for the position. The Senate cannot, without changing its own rules, vote simply to advise the president on the matter in the absence of also voting on consent to the 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:** [March 2, 2016, 12:00am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/169 "2016-03-02T00:00:47Z")
> [@doorhinge](#): > > (post shortened) > > You think the U.S. Senate is minimizing the definition of their duty in the U.S. Constitution. Based on what? Your corrected copy of the U.S. Constitution? Based on past history, advise and consent obviously does not mean that the U.S. Senate MUST confirm a Presidential nominee for the SCOTUS. > > So what else do you have? Feelings? > > If you think voters are pissed now (outsiders Bernie and Trump are drawing big crowds who don’t seem to like the SSDD politics) wait until Obama nominates another gun-banning, pro-registration/confiscation progressive for the Supreme Court. 2nd Amendment supporters will be turning out to vote and it won’t be for anti-2nd Democrats. Obama could add a lost Presidency to his loss of control in the U.S. House and U.S. Senate. However, Obama is already known as the best firearms salesman ever, so he’s got that going for him. There is a senatorial duty described when it says the POTUS “shall,” with the advice and consent of the senate, to vote up or down. You are saying they can stop the process based on the identity of the POTUS. I don’t see in the text that they can. I believe it’s overreaching. I’m not worried about a revolution if we get a progressive justice. Michelle Bachmann didn’t get anywhere with the “second amendment solutions” baiting and people are not going to be intimidated into giving these people their way, if that’s what you are implying. If they don’t get their way it’s revolution, and if they do: that’s something I want to live with either??? If that’s the way they deal with it it just means that we need progressive justices all that much more and sooner. Why did white people all of the sudden need guns when Obama got elected? What is the subsext of this impulse? I mean in a strictly sextual sense? ---
**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:** [March 2, 2016, 12:05am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/170 "2016-03-02T00:05:29Z")
> [@drad\_dog](#): > > I know, but can the president appoint without the senate? I haven’t been assured of it in the last 7 minutes and I am getting insecure. > … Yes, a president can appoint without the Senate in compliance with the Recess Appointments clause of the Constitution. The Supreme Court’s unanimous ruling in NLRB v Canning interpreted some of the limits of that power. ---
**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:** [March 2, 2016, 12:09am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/171 "2016-03-02T00:09:21Z")
> [@Iggy](#): > > [Senate Rule XXXI](http://www.rules.senate.gov/public/index.cfm?p=RuleXXXI) governs Proceedings on Nominations. The qualification is that it is up to the Senate’s Presiding officer to put the nomination on the agenda to begin with. That is the “unless otherwise ordered” phrase in the first section. See [Rule VII Section 3](http://www.rules.senate.gov/public/index.cfm?p=RuleVII) where “[t]he Presiding Officer may at any time lay … before the Senate, any bill or other matter sent to the Senate by the President…” > > Of note, if and when the Senate votes, they vote to “advice and consent”. One concept. So even if they vote no, they are voting no to giving “advice and consent”. Which, in the colloquial, is giving the president the advice that this nominee is not acceptable for the position. > > The Senate cannot, without changing its own rules, vote simply to advise the president on the matter in the absence of also voting on consent to the appointment. It sounds like from what you are saying that their advice and consent can only be provided by voting, and this would be logically after a hearing. IOW there is no prior restraint allowed under the rules, just ignoring the presidents nomination as if it didn’t happen ? ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 2, 2016, 1:40am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/172 "2016-03-02T01:40:23Z")
> [@CarnalK](#): > > Scalia only died a little over 2 weeks ago. They are still hanging the black cloth over his seat. I am surprised how disrepectful you’re being demanding that he get replaced so quickly. And you think it’s a party? Most unseemly. (Underline added) Hahahaha. You’re a hoot. I’ve read many of the responses to Scalia’s passing. And I’ve read many of the comments pertaining to Harry Reid’s practical joke nomination. “Disrepectful” isn’t the word I would chose. Mainly because it isn’t a word but there does seem to be a lot of sick, twisted people out there. I believe that the people who are demanding that the U.S. Senate must consent to an Obama nomination desperately need Obama (not Reid) to actually nominate someone. Obama is holding up the whole process and the internet is getting restless. ---
**Author:** ![doorhinge](https://avatars.discourse-cdn.com/v4/letter/d/a5b964/32.png) [@doorhinge](https://boards.straightdope.com/u/doorhinge)\ **Post date:** [March 2, 2016, 1:53am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/173 "2016-03-02T01:53:16Z")
> [@drad\_dog](#): > > …You are saying they can stop the process based on the identity of the POTUS. I don’t see in the text that they can. I believe it’s overreaching. > > I’m not worried about a revolution if we get a progressive justice. Michelle Bachmann didn’t get anywhere with the “second amendment solutions” baiting and people are not going to be intimidated into giving these people their way, if that’s what you are implying. > > …Why did white people all of the sudden need guns when Obama got elected? What is the subsext of this impulse? I mean in a strictly sextual sense? (post shortened) Item number 1 - I didn’t say that. The U.S. Senate can refuse to consent to a Presidential nomination for any reason. It’s the Senate’s call (and majority rules). Item number 2 - I’m implying that the voters will vote and you may not like the results. Item number 3 - What an incredibly racist thing to say. ---
**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:** [March 2, 2016, 2:22am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/174 "2016-03-02T02:22:29Z")
> [@drad\_dog](#): > > It sounds like from what you are saying that their advice and consent can only be provided by voting, and this would be logically after a hearing. IOW there is no prior restraint allowed under the rules, just ignoring the presidents nomination as if it didn’t happen ? Per the Senate rules Advice and Consent can only be granted by a vote. But until it is granted the president cannot appoint. A vote on granting Advice and Consent could be taken without a hearing or floor debate if the Senate does so with unanimous consent. Otherwise each Senator is permitted five minutes on the floor to make a statement. It would take unanimous consent to take such a vote on the day the president’s nomination is received at the Senate, otherwise they would have to wait at least until the next day. Nothing says the Senate has to schedule a vote on whether to grant Advice and Consent. Nothing says the Senate has to refer a nomination to committee. Nothing says a nomination referred to committee must be scheduled for a committee vote. So the Senate can fail to grant Advice and Consent by never voting. ---
**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:** [March 2, 2016, 3:21am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/175 "2016-03-02T03:21:02Z")
> [@Iggy](#): > > Per the Senate rules Advice and Consent can only be granted by a vote. But until it is granted the president cannot appoint. > > A vote on granting Advice and Consent could be taken without a hearing or floor debate if the Senate does so with unanimous consent. Otherwise each Senator is permitted five minutes on the floor to make a statement. It would take unanimous consent to take such a vote on the day the president’s nomination is received at the Senate, otherwise they would have to wait at least until the next day. > > Nothing says the Senate has to schedule a vote on whether to grant Advice and Consent. Nothing says the Senate has to refer a nomination to committee. Nothing says a nomination referred to committee must be scheduled for a committee vote. > > So the Senate can fail to grant Advice and Consent by never voting. Well I am trying to use laymans logic on the textuality: There is an affirmative requirement that the president, with the advice and consent of the senate, appoint a replacement. If the senate ignores him and will not bring his nominee up for business, they are ignoring that affirmative duty to advise and consent, those things occurring when there is a vote either up or down. How can you assert that the senate is not bound to advise and consent under these requirements? ---
**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 2, 2016, 3:47am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/176 "2016-03-02T03:47:52Z")
> [@drad\_dog](#): > > Well I am trying to use laymans logic on the textuality: There is an affirmative requirement that the president, with the advice and consent of the senate, appoint a replacement. > > If the senate ignores him and will not bring his nominee up for business, they are ignoring that affirmative duty to advise and consent, those things occurring when there is a vote either up or down. > > How can you assert that the senate is not bound to advise and consent under these requirements? Simple. No appointment is made. There is no time limit on this activity, so the Senate is under no deadline, nor is the President. If you think there is a time limit, please site the text of the constitution that you are deriving that from. ---
**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:** [March 2, 2016, 4:11am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/177 "2016-03-02T04:11:02Z")
> [@drad\_dog](#): > > Well I am trying to use laymans logic on the textuality: There is an affirmative requirement that the president, with the advice and consent of the senate, appoint a replacement. > > If the senate ignores him and will not bring his nominee up for business, they are ignoring that affirmative duty to advise and consent, those things occurring when there is a vote either up or down. > > How can you assert that the senate is not bound to advise and consent under these requirements? You keep interchanging the word “nominate” and “appoint”. That’s the first clue that you’re misinterpreting the text, when you aren’t accurately reading the text. ---
**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:** [March 2, 2016, 4:30am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/178 "2016-03-02T04:30:18Z")
> [@Bone](#): > > You keep interchanging the word “nominate” and “appoint”. That’s the first clue that you’re misinterpreting the text, when you aren’t accurately reading the text. My reading is that nominate means he comes up with a persons name. Appoint is what happens to put him in place. And that the senate is cited as a necessary participant in this process, that the POTUS “shall” perform according to the constitution. How am I misreading? ---
**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:** [March 2, 2016, 4:35am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/179 "2016-03-02T04:35:41Z")
> [@doorhinge](#): > > (post shortened) > > Item number 1 - I didn’t say that. The U.S. Senate can refuse to consent to a Presidential nomination for any reason. It’s the Senate’s call (and majority rules). > > Item number 2 - I’m implying that the voters will vote and you may not like the results. > > Item number 3 - What an incredibly racist thing to say. IMHO the NRA is way overrated as an electoral force and the future is a down arrow. Anyway I’m fine with the math on going against the gun lobby. ---
**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:** [March 2, 2016, 4:41am UTC](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697/180 "2016-03-02T04:41:28Z")
> [@John\_Mace](#): > > Simple. No appointment is made. There is no time limit on this activity, so the Senate is under no deadline, nor is the President. If you think there is a time limit, please site the text of the constitution that you are deriving that from. The fact that you cite 'There is no time limit" as your evidence is proof that you are wrong. If that’s the only thing there is, you are basically admitting that they are required to participate but that they may take the opportunity to make it last forever. That is not a good argument, textually speaking. [Previous page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=8) [Next page](https://boards.straightdope.com/t/textualist-meaning-of-shall-re-sc/746697.md?page=10)