Ser Scot A Ellison Posted March 19, 2016 Share Posted March 19, 2016 Swordfish, I thought I did answer it. Yes, the Constitution charges the Senate with the duty to give the President "advise and consent" on Supreme Court nominees. The problem is that there is no mechanism other than the Courts to attempt to force the Senate to do its duty. Most Courts are likely to kick such a case on "Political Question" grounds making an attempt to force the Senate to hold hearings useless regardless of the explict duty to give the President "advise and consent" on his nominee for the Supreme Court. Link to comment Share on other sites More sharing options...
Swordfish Posted March 19, 2016 Share Posted March 19, 2016 Just now, Ser Scot A Ellison said: Swordfish, I thought I did answer it. Yes, the Constitution charges the Senate with the duty to give the President "advise and consent" on Supreme Court nominees. The problem is that there is no mechanism other than the Courts to attempt to force the Senate to do its duty. Most Courts are likely to kick such a case on "Political Question" grounds making an attempt to force the Senate to hold hearings useless regardless of the explict duty to give the President "advise and consent" on his nominee for the Supreme Court. Where is this explicit duty defined? Link to comment Share on other sites More sharing options...
Ser Scot A Ellison Posted March 19, 2016 Share Posted March 19, 2016 Swordfish, Article II, Section 2: and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, Right there in black and white. The Senate can say "no" but it has to say something. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 11 minutes ago, Swordfish said: Where is this explicit duty defined? “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” It is a construction question, I think shall applies to advise and consent Link to comment Share on other sites More sharing options...
Ser Scot A Ellison Posted March 19, 2016 Share Posted March 19, 2016 Shall implies a ministerial duty they are required to complete. Link to comment Share on other sites More sharing options...
ThinkerX Posted March 19, 2016 Share Posted March 19, 2016 I have to wonder if Obama could argue the Senates refusal to even hold hearings could be taken as default assent to his nominee. That the Senate appears to have deliberately removed themselves from the process, therefor leaving Obama free to act without constraint. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 That was odd, during the NCAA coverage here in Iowa some Super PAC just ran an ad asking us to call Grassley and stop the nomination of any Obama appointee. Link to comment Share on other sites More sharing options...
Swordfish Posted March 19, 2016 Share Posted March 19, 2016 10 minutes ago, Ser Scot A Ellison said: Shall implies a ministerial duty they are required to complete. Shall, in that sentence, quite clearly applies to the president. Not very good at diagramming sentences as a kid, were you? And as I've said a hundred times now, even if you were right about that 'shall', and you clearly aren't, it places exactly zero limitations on method or timeliness. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 Just now, Swordfish said: Shall, in that sentence, quite clearly applies to the president. Not very good at diagramming sentences as a kid, were you? Shall in that sentence applies to the process that follows it, including advise and consent. Link to comment Share on other sites More sharing options...
Veloknight Posted March 19, 2016 Share Posted March 19, 2016 https://newrepublic.com/article/131700/republicans-block-obamas-supreme-court-pick-violating-constitution If this article is correct (and at least the MA parts are true, as far as this Massachusetts native knows), the reason there isn't a more explicit power for the President to make the Senate consider the nominee is because the Founders simply never considered this scenario. It just didn't happen in the bodies they were studying: people would get rejected, but not out of hand and not without going through a process. Frankly, I think this is one in a series of Constitutional issues that will come to light in our newly ideologically consistent party system. It's sort of a constitutional equivalent to an unfunded mandate: the President and Senate are supposed to work together on something, but neither really has appropriate powers for the job, and no way to force a resolution without an intervening election. Given how low-profile process issues can be, that strikes me as very dangerous. Link to comment Share on other sites More sharing options...
Ser Scot A Ellison Posted March 19, 2016 Share Posted March 19, 2016 Swordfish, You are letting your political bias blind you. This is a stupid move, politically, and whoever ends up in the White House, Trump or Sec. Clinton their pick will be much worse than a competent Jurist who was already confirmed as the Chief Judge of the DC Cir. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 Here is the ad runnung in Iowa: http://www.onenationamerica.org/one-nation-launches-supreme-court-ad-in-iowa/ Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 1 minute ago, Ser Scot A Ellison said: Swordfish, You are letting your political bias blind you. This is a stupid move, politically, and whoever ends up in the White House, Trump or Sec. Clinton their pick will be much worse than a competent Jurist who was already confirmed as the Chief Judge of the DC Cir. Exactly. Trump might appoint his personal lawyer, who knows, and Merrick is a moderate and relatively old. Clinton will go young and very liberal. Link to comment Share on other sites More sharing options...
Swordfish Posted March 19, 2016 Share Posted March 19, 2016 9 minutes ago, ThinkerX said: I have to wonder if Obama could argue the Senates refusal to even hold hearings could be taken as default assent to his nominee. That the Senate appears to have deliberately removed themselves from the process, therefor leaving Obama free to act without constraint. He cannot. Because that's something the constitution IS explicit about. Link to comment Share on other sites More sharing options...
Mudguard Posted March 19, 2016 Share Posted March 19, 2016 4 minutes ago, GrapefruitPerrier said: Shall in that sentence applies to the process that follows it, including advise and consent. It doesn't work grammatically. You can't insert "shall" anywhere in that clause that makes sense. It also doesn't make sense to claim that the Senate "shall" provide advice and consent, because clearly the Senate can withhold consent. Link to comment Share on other sites More sharing options...
Swordfish Posted March 19, 2016 Share Posted March 19, 2016 3 minutes ago, Ser Scot A Ellison said: Swordfish, You are letting your political bias blind you. This is a stupid move, politically, and whoever ends up in the White House, Trump or Sec. Clinton their pick will be much worse than a competent Jurist who was already confirmed as the Chief Judge of the DC Cir. I'm doing nothing of the sort. One could certainly argue that deliberately misconstruing the meaning of a sentence to suit your pre conceived notions is an indicator of bias. I have no political dog in this fight. Whether its its politically stupid or not has nothing to do with the legality of it. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 1 minute ago, Mudguard said: It doesn't work grammatically. You can't insert "shall" anywhere in that clause that makes sense. It also doesn't make sense to claim that the Senate "shall" provide advice and consent, because clearly the Senate can withhold consent. Yes, it does work grammatically. “shall nominate, and by and with the Advice and Consent of the Senate," Shall applies to nominate,and the advise and consent clause is dependent on nominate. This means the shall applies to the process. In fact, shall is the verb used throughout this section so you cannot simply decide not to apply it. Link to comment Share on other sites More sharing options...
Ser Scot A Ellison Posted March 19, 2016 Share Posted March 19, 2016 Swordfish, The political stupidity of this move has everything to do with it. As I pointed out earlier there is no viable mechanism to force the Senate to hold hearings. The only remedy for this kind of blatent refusal to perform a ministerial duty is to vote the Senators out of office. Link to comment Share on other sites More sharing options...
Swordfish Posted March 19, 2016 Share Posted March 19, 2016 3 minutes ago, Ser Scot A Ellison said: Swordfish, The political stupidity of this move has everything to do with it. As I pointed out earlier there is no viable mechanism to force the Senate to hold hearings. The only remedy for this kind of blatent refusal to perform a ministerial duty is to vote the Senators out of office. There is no explicit requirement in the constitution for them to hold hearings. So no, the political stupidity of it is utterly irrelevant to the question of whether what they are doing is an abdication of an explicit constitutional duty. It either is or it isn't. If you think I'm enamored with the possibility of Trump nominating a SC justice, you are sadly mistaken. Link to comment Share on other sites More sharing options...
Guest Posted March 19, 2016 Share Posted March 19, 2016 I do not think we are going to resolve this. As I pointed out earlier, if the SC does not kick this out as a political question, Swordfish will lose on construction and common sense. Back to basketball. Link to comment Share on other sites More sharing options...
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