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I’m under the impression that the Framers envisioned the voters removing the game players in government before the President and/or Congress could screw things up to badly. How wrong they were.
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Then you understand that the U.S. Senate is participating in the process by not consenting to the President’s nominee.
So you already forgot that the president is working on this? And further that Scalia died about 3 weeks ago? And further that the one name floated or leaked was rejected publicly by the ML? And much more importantly that he said he would not allow any nominee of this president consent, ever?
You are not addressing text. You are just coming out with political ressentiment.
Every time someone bring up a point you blame Obama change the subject:
“They don’t have to!”
Yeah but they’re in the constitution there.
“Well they don’t have a time limit!”
Well that means they are part of the process and are just stonewalling. You just lost your own argument.
“Well Obama hasn’t done anything. Why doesn’t he act like a man and nominate someone?!?!”
You guys are a trip.
Seriously, do you want to discuss this?
OK then: What nominee? How can you not consent to something that isn’t proposed yet, dude?
They state clearly that this is not a rejection of a nominee at all.
It is a blanket rejection of a class of nominees that are the only class that is available to the nation.
No, you get the “unless” from the fact that it is a conditional. The President cannot appoint someone unless the Senate consents. That’s what ‘with their consent’ means. That’s not reading anything into the text - that’s drawing meaning out of it. That’s how reading works.
Wrong on all counts.
You claim that the Senate is not participating in the process. The process cannot begin until Obama has nominated someone. The Senate cannot participate in a process that hasn’t started yet.
And I am addressing text directly. You are claiming, apparently, that the Senate has to give its advice and consent, because the Constitution says they have to. The Constitution says that the process starts with the President nominating someone. That hasn’t happened. Therefore, the Senate cannot be refusing to participate in the process, because no process is happening. It hasn’t started yet.
Yes, the Senate is “there in the Constitution”. Their role is delineated. The President’s role is also “there in the Constitution”. He has not, to date, done the first part of his role, which is to nominate someone. If you are faulting someone for not fulfilling their role as set forth by the Constitution, then Obama is not fulfilling his role as set forth in the Constitution.
The Constitution does not say that either Obama nor the Senate has a time limit. It does say that the process starts with Obama nominating someone. He hasn’t nominated anyone. Therefore, the process hasn’t started.
That the Senate is obligated to consider a candidate once he or she is nominated is an arguable point. That the President is obligated to nominate someone first, is not.
Regards,
Shodan
What’s that you say? Obama has not yet fulfilled his constitutional doody to nominate a candidate for the Supremes?? Inconceivable!
This is a masterpiece of illogic and avoidance. Thanks for the repost, but you left off the last line where you do exactly what you do again and again, AGAIN! (Which is to say you missed or repressed the whole point, textually speaking of course) Meanwhile you are frittering your argument away by admitting that Obama should nominate, when your compadres in DC have stated that he shouldn’t even bother.
You are on auto just like Rubio and you are doing just as well as he is.
See my prior post. Care to address a real issue?
So basically you have your fingers in your ears and are saying loudly, “La la la la…”
Is that what you spend time on here to accomplish? It’s not a good look, and it’s not going anywhere, like textually.
So you don’t actually have an answer. Got it.
Regards,
Shodan
No, there is no ambiguity at all.
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Both in definition and in syntax, “nominate” and “appoint” are two different acts.
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If the President had the sole power to appoint, then the clause would just be “The President shall appoint . . . .”
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“With . . . the consent” has a natural, known and unambiguous meaning. It means that you ask, and the askee either extends, or declines to extend, permission.
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If the “consent” of the Senate is a constitutional rubber stamp, then the “Consent” part of the Advice and Consent clause has no purpose.
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“Consent” has a different meaning that “Advice.” Advice may be heeded, or disregarded. Consent sets a legal boundary.
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“Consent” has a special meaning when it comes to executives (monarchs) and legislatures, tracing back to Parliament. This is textual analysis - as it relates to what the words in the text meant, in the context in which they were put there.
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“Shall consent” is logically incoherent. Consent is an act of free will. While not incoherent, it also is inconsistent with “Advice.”
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The Appointments clause has only one subject - the President. The President “shall.” The Senate is not the subject of the sentence, and no obligations are imposed on it.
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The lack of obligation imposed on the Senate is further reflected in the position of the Appointments Clause - in Article II of the Constitution, not Article I.
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As John Mace indicated, the explicit creation of a Recess Appointment power, which allowed for temporary commissions without Advice and Consent, reinforces that the process under the Appointments Clause is not a rubber stamp.
Is it that difficult to address the senates part in the process? It is a requirement.
It simply won’t do to keep asserting that the nominee won’t become a justice without an affirmative vote. This has been settled. So why is that sufficient to answer the textual question? It has been stated 40 times on this thread without getting beyond that. Why?
They are required to be the gatekeepers in this process. By the constitution they would have to stall on it or ignore the POTUS forever to avoid acting. Which means that what the POTUS “shall” do they either approve or reject; but it is not apparent that they can label his picks unacceptable a priori. Why would you think that is what the text says?
You are saying the constitution doesn’t direct the senate to pay any attention at all to the only source of a true nomination. But it seems to be in there. So where is the nomination to come from, under the Constitution, when they have rejected the constitutional process?
Would you say something different if the next sentence had said : “The senate shall vote on the presidents choice, unless they don’t want to”? I think the reason it is not in there is not to protect the country against its own leader, but that it was self evident as a process.
If the Constitution said “The Senate shall vote on the President’s choice”, you might have a point. But it simply doesn’t say that.
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The nomination still comes from the POTUS. Them’s the rules. How the U.S. Senate handles that nomination is up to the U.S. Senate. Them’s also the rules.
If things were different, things would be different.
What is “not in there”? Your statement that “The senate shall vote on the presidents choice, unless they don’t want to”? It should be obvious by now that the U.S. Senate does not have to confirm, or address, the POTUS’s nomination. The POTUS nominates, the U.S. Senate confirms unless they choose not to. If you want to change the rules, you should contact your U.S. Senators or run for the office yourself.
The Founders understood that not every elected official would have the best interests of the majority of voters. That is why there are three branches of government along with the various checks and balances. The voters have the final say. The voters can change the POTUS and they can change the make up of the U.S. Senate.
Not the issue. I was addressing Frylock’s post 183 assertion that the text of the Appointments Clause is ambiguous, and that the text can support a reading under which “This means Senate ‘shall’ consent.” Bottom line: no, it can’t.
I am suggesting that the Senate’s role is to provide Advice and Consent on the President’s nomination in the manner of its own choosing - and that if the people do not like the manner of the Senate’s choosing, there is a mechanism every second November to enforce a different behavior.
I am suggesting that stalling nominations has been done before, by both parties. John Roberts was nominated to the DC Circuit in January 1992. Guess what? No hearing was held. John Roberts was nominated to the DC Circuit again in 2001. Guess what? No hearing was held in 2001, or 2002. So how did he get on the bench? The 107th Congress ended, and a new Senate sat for the 108th Congress - with a different party in charge. It turns out that the Constitution had a solution, after all. (And Republicans who won’t hold hearings now certainly should contemplate the 107th Congress to see whether “no hearings” is the look they want to convey heading into elections.)
I am suggesting that the Constitution has even another safety valve - the Recess Appointment clause.
I think Obama will be villified on the right if he makes a recess appointment, the same as they do his other initiatives. That is their sole brilliant strategy. And I think he is just letting the circus go on for now. It will seem very unamerican to hang it up for almost a year, notwithstanding any symmetries with past events that you see.
My understanding is that the senate sometimes has little bits of business carried out during recess so as to deny the POTUS a recess nomination. Maybe you know more about it.
One thing is for sure about senate Rebuplicans: They wanna trump justice.
There was a legal case about recess appointments that made its way to the Supreme Court a few years ago. NLRB v. Canning
One of the issues decided in this unanimous ruling is that the pro forma (brief, walk in tap gavel, declare Senate in session. Tap gavel again, declare Senate in recess) sessions every three days is legally sufficient for the Senate not to be in recess for the purposes of the Recess Appointments clause. So long as the Republicans keep that up then Obama cannot make a recess appointment.
But in NLRB v. Canning the Supreme Court did decide that a recess of at least ten days might be sufficient for a president to make a recess appointment. I have wondered if the Republicans might decide to recess long enough to allow Obama to make a recess appointment. They could then argue to their constituents that they didn’t vote to put Obama’s nominee on the court.
Moreover, a recess appointment is only valid until the end of the next Senate session. So any appointment Obama might make by such means would automatically expire unless the Senate takes action to formally confirm the appointee.
The text of the Recess Appointments clause reads:
What is not entirely clear to me based on the ruling in NLRB v. Canning is whether that “End of their next Session” would be January 2017 or January 2019 in this case. Would a new Session (for these purposes) start when the Senate ends its recess and thus the End of their next Session would be January 2017? Or would the next Session (for these purposes) not start until January 2017 and thus end in January 2019?
I’m no lawyer, but if the Republicans were convinced that allowing a recess appointment would only last until January 2017 and would sufficiently tamper any criticisms long enough for them to win the election then it would come at a cost of a very few rulings. And even if they lost the election the full Senate would still be back to square one once the appointee’s Commission ends.