It is, quite clearly, arguing against the Constitution to say a sitting President isn’t required and authorised to nominate a Supreme Court justice. Since there’s no dates or timelines listed, how could a textualist argue otherwise just because it’s his last day? I mean sure, Obama’s buddy whathisname could give that advice but that’s because he wasn’t sworn to uphold the Constitution.
Can you translate that into “yes” or “no” to the question I asked? 
Casually, it’s acceptable advise. Formal and public Senate advice to not nominate is clearly not acceptable.
Do you have some textualist argument against the President nominating on his last day?
You are confusing what the president must do with what he may do. There is no textualist argument insisting that the president can’t nominate on his last day, but there is also no textualist argument that he must do so.
Point being, there is no timeframe given. You want to read into the text that the president must nominate someone in “a reasonable timeframe”, but that’s simply not supported by the text. It would only be supported if it clashed with some other requirement of the constitution. As I noted before, it every justice were wiped out all at once, one could argue that the president needs to make haste in nomination since the constitution envisions that there be a SCOTUS, and in that case there wouldn’t be one. But as it is, there is a fully functional SCOTUS, and since no timeframe is given, it should be left to the discretion of the president.
So there’s nothing wrong in this instance with Congress saying “wait” and there’s nothing wrong with there president saying “go jump in the lake; here’s my nominee, bee-atches!!”
The argument about whether the Senate has to take action to reject a nominee is best examined from an Originalist perspective, not a Texualist point of view.
The Founders considered various options: Executive appoints with no confirmation required. Legislature appoints with no Executive input. Let lawyers appoint with no input from the Executive or Legislature. Executive nominates with Senate action needed only if they wish to veto. And finally they settled on a system where the Executive nominates with a positive action to confirm required by the Senate and no action, not even a vote, required if the Senate should choose to reject a nominee.
How do we know that the Founders chose a system that permits Senate inaction? Because 1)they considered and rejected systems that required a Senate action and 2) they modeled the whole system on what was in place in Massachusetts where the custom was to not vote on nominees which were rejected.
But that is not a Texualist argument.
No, it’s best examined by the way it’s been done for over a hundred fucking years. It goes to Senate hearings and if no one gives up, it goes to vote. What realistic objection is there to just doing that? If the Senate thinks the current President shouldn’t be allowed to appoint someone they can just vote no.
The worst part about it is the Republicans should have the hearings and then vote no every time.
Even then, if it went past two or three rejected nominees, some here would start saying that the Republicans “aren’t doing their jobs” and are “acting unconstitutionally” because the word consent is in the Constitution, so they have to consent at some point, as part of the process.
Not really. We’re talking about what is constitutionally required. They could be doing all sorts of stuff for over a hundred years that wasn’t constitutionally required.
What you offer is what we, as voters, should expect the Senate to be doing. But that is a separate matter.
As you said, there’s no recourse, time limits or process guidelines so obviously it doesn’t matter or you can argue nothing at all is required regarding the Supreme Court. There’s no penalty or deadline if the President or Senate refuse to fill it, so it’s bullshit to say the Constitution actually demands it’s existence. Empty words.
Yeah, this is mostly an intellectual exercise. The only time I could see it coming into play is if a president refused to nominate a justice, and Congress considered impeachment. But there are few things presidents love to do more than nominate SCOTUS justices, so that seems like a ridiculously improbably hypothetical.
I believe it’s obvious that the framers intended for the other two branches of government to work together to seat a Justice on the third. If the framers expected the U.S. Senate to automatically consent to a President’s nominee, there would have been no reason to include the Senate in the process. The President would have simply been granted the power to appoint Justices to the Supreme Court. That didn’t happen.
The U.S. Senate is free to approve the President’s nominee. They are also free not to give their consent to the President’s nominee. How the U.S. Senate handles the nomination confirmation is up to the U.S. Senate, not the President. Or the internet.
If We the Voters approve/disapprove of the actions of the U.S. Senate, We the Voters can make our views known via the ballot box.
The way it has been done for hundreds of years is that about 25% of the rejected nominees never got a vote. Senators raised objections and nominees were withdrawn.
And the whole system was explicitly modeled on the Massachusetts system where exactly the same had been done, but to encompass all rejections of nominees without a vote.
The objection in ht present case, quite clearly and explicitly stated, is a political one. The Senate is entitled to reject a nominee, or refuse to act on a nomination, for any reason at all. It is up to the voters to decide if their actions are appropriate and vote accordingly.
Since all federal Supreme nominees have gone to the Senate floor or committee and the vast majority have gone to a vote, it’s pretty clear the originals didn’t intend to adopt that particular Massachusetts custom.
Why would it necessarily be the Senate’s fault in that scenario? Maybe the President is sending up a batch of poor nominees? As I said above, the GOP Senate, this Senate, tomorrow would confirm Judge Luttig if nominated by Obama. So they will advise and consent to what they consider to be a fitting candidate. Obama, of course, would never nominate Judge Luttig or anyone to the right of Karl Marx.
So if Obama will knowingly nominate candidates that he knows in advance do not have the consent of the Senate, then who’s fault is it?
Implicit in what you are saying is that the Senate must (eventually) consent to what they consider to be a poor nominee. That is not supported by the text or the intent of the Constitution.
Yes, I agree 100%. But there are posters on this message board saying that the Senate’s current stance–to withhold consent–is somehow unconstitutional.
Clearly not all Supreme Court nominees have gone to the Senate floor or committee.
Several of the withdrawn nominations have been in the aftermath of Senators expressing displeasure even though the matter never made it to the Senate floor or committee. See Harriet Miers, Douglas H. Ginsburg*, Nixon’s nomination of Abe Fortas as Chief Justice**, and Homer Thornberry. And that is just since WWII.
When their advise is, “NO”, the Senate can provide advice by other than a floor or committee vote just as was done by the Privy Council in Massachusetts under their state Constitution of 1780.
- Objections were strong and swift enough that Douglas Ginsburg’s nomination was withdrawn after it was announced but before the nomination papers arrived at the Senate.
**Fortas was an Associate Justice on the Supreme Court. and remained so after his nomination to the position of Chief Justice was withdrawn without a vote.
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
Ginsberg withdrew himself before it got to the Senate. You really think that bolsters your argument? Aah whatever.
Unsuccessful nominations* have:
been declined by the nominee.
been withdrawn by the President.
been withdrawn by the nominee.
expired due to inaction by the Senate.
been voted down in committee.
been voted down by the Full Senate.
been postponed indefinitely, but not explicitly rejected, by Senate vote.
been nullified when Congress voted to reduce the size of the Court.
Clearly not all of those “have gone to the Senate floor or committee” as you stated.
Most of the unsuccessful nominees were voted down, either in committee or by the full Senate. But not all.
- Additionally vacancies were not filled when Congress voted to shrink the size of the Court and when a confirmed nominee died before taking his seat on the Court.