Then your reading is not reasonable. You may think that’s the way it should be, but from a textualist standpoint your reading is not reasonable. Also from every single interpretation of the constitution thus far it has never been interpreted to mean what you think is reasonable. On that score your reading is not reasonable.
The Congress has delayed votes on judiciary appointees quite frequently.
Against a court order that compels them as to what business will be conducted on the Senate floor? I strongly disagree–I think the Senate would reject what would be seen as a violation of separation of powers. But that’s the “dumb side” of the hypothetical, the more realistic side is that it’s likely no sitting justice today would issue a ruling about what the Senate needed to vote on.
To be honest this just feels like we’re rehashing NLRB v Noel Canning, in which the SDMB largely felt that Obama should be able to push through a recess appointment, even when Congress chose to intentionally remain in session, because the “existence of the recess appointment clause mandates that recesses must exist for the President to be allowed to execute this power.” The SCOTUS ruled 9-0 that his appointments to NLRB and CFPB were improper, it was not even a hard decision for them.
I agree the Constitution requires the Senate to give the President’s nominees consideration–but I disagree that there is any legal remedy to them simply refusing to do so. Anyone asserting otherwise now has as their burden a requirement to present legal precedent for the Supreme Court mandating the Senate hold a vote on anything, sans that we can put this away.
And if, for some crazy reason, the court were to compel the Senate to vote, and the Senate were to agree, they’d just vote NOT to confirm. Is the court then going to limit the number of nominees the Senate can vote down?
It’s interesting to see folks so invested in making the Senate vote that they make up all these alleged requirements, down to interpreting “shall” to apply to the Senate in this case.
There is no remedy other than the political one, and if The People don’t care, then there is no harm done.
I agree too. Sometimes it’s too bad the SC can’t just be asked for an opinion. Like, “ok, I know you can’t do anything about it but what is this bit of the Constitution supposed to mean?” I guess it might just turn into political speech but a couple of learned opinions wouldn’t be horrible to discuss.
Well no because the Constitution asks them to consider nominees not accept them. That’s sort of a slippery slope or reductio ad absurdum argument, not sure which. Lol.
And applying the “shall” to the Senate is not remotely as ridiculous as you simply. “You shall clean the garage with your brother’s help” Brother decides he’s best helping by staying out of your way and goes to the mall. John Mace’s son just lawyered him!
One per month over 9 months would be excessive I think. But they have to stop bellyaching and start to shoot them down.
Are you saying that if they threaten to not approve anyone, as a priori censorship, that is rationale for not letting the POTUS do his duty?
Nope. “Advise and consent” is not “help”. It’s “advise and consent”. There is nothing in there that compels the Senate to vote.
Wrong. “With” means they are supposed to do it alongside the President’s “shall”.
No. It means the president must seek the advice and consent of the Senate, not that the Senate must give it.
I’ll note you’re trying to have it two ways. In the other thread “don’t make a nomination” is advice and here they don’t have to give advice. Which do you think is actually happening?
And you’re simply and obviously wrong. It’s a command to both the President and the Senate. As you point out, no there’s no recourse. Bravo. They can flaunt the Constitution without recourse.
Do you have a cite for this claim? Because this reading has never been implemented. You can ask Miguel Estrada for his opinion.
Both can be true. There are only a limited number of things that Congress must do. Article I lays them out.
And I would say matters that carry an obligation with no enforcement provision are not actually obligations. There is no difference between an obligation with no enforcement and a mere recommendation. Because this is a political question, the resolution is at the ballot box.
I thought I had already pointed out to you that the Supreme Court is required by the Constitution, lower courts are not. Congress could close down every federal court in the land tomorrow if they wanted, except the Supreme court. Now, before I start reading this Miguel guy’s Wikipedia page, could you tell me if the Supreme court going to be involved?
Ultimately, this is the correct answer.
That said, I do wonder if the GOP has fully considered the path they are putting the country on here. Either the populace makes it clear that they disagree with this political path or it will become increasingly difficult for any POTUS to ever nominate with the opposing party in power in the Senate.
I think it’s likely that either the rules for the Senate will have to change re: recess (to allow a pressure valve for these situations), or it won’t be long until you won’t see any nominations approved after the mid-terms. Especially if there appears to be no political price to be paid for obstruction.
In the other thread, I’m talking about what is actually happening now. In this one, I am addressing the broader question about what the Senate must do.
Cite?
Ok, I read about him anyways. What the hell are you talking about? If a nominee goes before the Senate judiciary committee, like this guy did, I certainly would not be arguing the Senate failed a duty to advise and choose whether they consent or not.
It’s a lower court nomination. You are assuming there is a difference between the SCOTUS appointments and the lower courts that go through the same process. For the purposes of what Congress is required to do, there is no difference.
Just what do you think should be the requirement then? That the nominee get a vote? That they get a hearing? That they be allowed to be nominated? I’m not sure what part you think is required that isn’t happening. When Obama nominates someone and the Congress [judiciary committee] says, thanks for the nomination - we’re not going to vote on it or take any action, would that be okay in your view? I’m trying to figure out at what point things are consistent with your view of the Constitution, and when they are not.
Help me out here, Congress must do … what exactly? Accept that there is a nominee? Hold a hearing? Vote? When does not okay become okay?
The history of nominations? No nominee has failed to be discussed since the Civil war. This “lame duck presidents can’t nominate” is what needs a cite.