US Politics: 50 shades of Scalia

[Mudguard]

4 minutes ago, GrapefruitPerrier said:

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.

 

Your interpretation makes no sense.  The phrase "by and with the Advice and Consent of the Senate" clearly refers to the clause that comes after, "shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court" and not the preceding clause.  It means that the President cannot make an appointment unless he or she obtains the consent of the Senate.  That's how it's always been interpreted.

Clearly the Senate does not have to provide consent, so asserting that the Senate "shall consent" is wrong.

[Guest]

1 minute ago, Mudguard said:

Your interpretation makes no sense.  The phrase "by and with the Advice and Consent of the Senate" clearly refers to the clause that comes after, "shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court" and not the preceding clause.  It means that the President cannot make an appointment unless he or she obtains the consent of the Senate.  That's how it's always been interpreted.

Clearly the Senate does not have to provide consent, so asserting that the Senate "shall consent" is wrong.

 LOL!  Nope, it refers to the President who is doing the nominating, by and with the oldsters in the Senate.

[Ser Scot A Ellison]

Swordfish,

You're missing my point.  I'm not calling you a Trump fan.  I'm saying if this nominee isn't confirmed the next nominee will be offered by Sec. Clinton or Trump.  Is stonewalling this nominee really a smart move when the other options will be less pleasant to the existing Senate majority?  The Senate Republicians are making a stupid move and I believe it will hurt them come November.

And regardless of what we believe the Constitution says about the Senate's duty here there is no way to enforce and order to the Senate to hold hearings or a vote on a nominee.

[Mudguard]

Just now, GrapefruitPerrier said:

 LOL!  Nope, it refers to the President who is doing the nominating, by and with the oldsters in the Senate.

The President can nominate whoever he wants, but he must obtain consent of of the Senate to appoint.  Obama didn't obtain consent of the Senate to make his nomination, but he does need their consent to make the appointment.

This basic lack of comprehension makes it obvious that it's pointless to continue to argue.

[Swordfish]

8 minutes ago, Ser Scot A Ellison said:

Swordfish,

You're missing my point.  I'm not calling you a Trump fan.  I'm saying if this nominee isn't confirmed the next nominee will be offered by Sec. Clinton or Trump.  Is stonewalling this nominee really a smart move when the other options will be less pleasant to the existing Senate majority?  The Senate Republicians are making a stupid move and I believe it will hurt them come November.

And regardless of what we believe the Constitution says about the Senate's duty here there is no way to enforce and order to the Senate to hold hearings or a vote on a nominee.

No, Scot. I'm not missing your point at all. 

It simply is not the point we are discussing. You are moving the goalpost. 

 

[Guest]

10 minutes ago, Mudguard said:

The President can nominate whoever he wants, but he must obtain consent of of the Senate to appoint.  Obama didn't obtain consent of the Senate to make his nomination, but he does need their consent to make the appointment.

This basic lack of comprehension makes it obvious that it's pointless to continue to argue.

 My constitutional law prof would find you hilarious.  I stand with 350 law profs, over you, any day.   Good read, and explain to me why I would care whyat folks on a fantasy board think, who are not lawyers?  I don't know, just trying to educate the masses I guess.

http://www.afj.org/wp-content/uploads/2016/03/Law-professor-SCOTUS-vacancy-letter.pdf

 

[Manhole Eunuchsbane]

1 hour ago, Swordfish said:

That may well be true.

But what we are talking about is whether they have a constitutional duty to do so.

Solid point! When I go in to work on Monday I'm going to go to my manager and refuse to do one aspect of my job on the grounds that I don't have a constitutional duty to do so. Wish me luck!

[Ser Scot A Ellison]

Swordfish,

No, I'm not moving the goalpost.  The goalpost is exactly where I set it when I began to participate in this discussion.  It may not be where everyone else puts it.  It is my sincere and considered opinion that the Constitutionality of the Senate's move is completely irrelevant as there is no way to force the Senate to act.  The only mechanism for this type of refusal by a portion of the Legislative branch to act is political.

[Swordfish]

3 minutes ago, Manhole Eunuchsbane said:

Solid point! When I go in to work on Monday I'm going to go to my manager and refuse to do one aspect of my job on the grounds that I don't have a constitutional duty to do so. Wish me luck!

Good luck. 

[Ser Scot A Ellison]

21 minutes ago, GrapefruitPerrier said:

 My constitutional law prof would find you hilarious.  I stand with 350 law profs, over you, any day.   Good read, and explain to me why I would care whyat folks on a fantasy board think, who are not lawyers?  I don't know, just trying to educate the masses I guess.

http://www.afj.org/wp-content/uploads/2016/03/Law-professor-SCOTUS-vacancy-letter.pdf

 

What remedy can be applied by a Court to force the Senate to act?

[Manhole Eunuchsbane]

2 minutes ago, Swordfish said:

Good luck. 

Thank you, sir. I've got a great feeling about this. Things are gonna change for the better.

[Veloknight]

24 minutes ago, Ser Scot A Ellison said:

What remedy can be applied by a Court to for the Senate to act?

I've been pondering this myself.

Question: if the President uses his power to call an Extraordinary Session during a full recess, what happens? Can the executive make the legislators physically come back. If they simply vote to adjourn, can he immediately call a new one, and compel them to return again? I can't imagine - and hope this would never happen - past or current Presidents doing this, but if the Senate is willing to engage in this kind of legalistic brinksmanship, it's not hard to conceive of some future executive doing the same.

Likewise, can a court order the Senate to comply? If they refuse, can it have it's officers jail members for contempt, or lock them in the chamber?

All of this really does underscores how fragile democratic norms are, to me.

[Mudguard]

39 minutes ago, GrapefruitPerrier said:

 My constitutional law prof would find you hilarious.  I stand with 350 law profs, over you, any day.   Good read, and explain to me why I would care whyat folks on a fantasy board think, who are not lawyers?  I don't know, just trying to educate the masses I guess.

http://www.afj.org/wp-content/uploads/2016/03/Law-professor-SCOTUS-vacancy-letter.pdf

 

Wow, I wasn't expecting this type of response.

So, in your experience, how well do repeated appeals to authority work in educating the masses (a noble goal by the way)?  Do you personally find them convincing?

[Ser Scot A Ellison]

10 minutes ago, Veloknight said:

I've been pondering this myself.

Question: if the President uses his power to call an Extraordinary Session during a full recess, what happens? Can the executive make the legislators physically come back. If they simply vote to adjourn, can he immediately call a new one, and compel them to return again? I can't imagine - and hope this would never happen - past or current Presidents doing this, but if the Senate is willing to engage in this kind of legalistic brinksmanship, it's not hard to conceive of some future executive doing the same.

Likewise, can a court order the Senate to comply? If they refuse, can it have it's officers jail members for contempt, or lock them in the chamber?

All of this really does underscores how fragile democratic norms are, to me.

Indeed.  Huge Constitutional crisis if Court's seek to order the Legislative branch to take up X issue.

[Veloknight]

Just now, Ser Scot A Ellison said:

Indeed.  Huge Constitutional crisis if Court's seek to order the Legislative branch to take up X issue.

Honestly, we're already experiencing a crisis, just a lesser one. The Obama years have begun to reveal a fundamental problem with the Constitution: it tends to assume good-faith cooperation from all of our political actors. It literally didn't occur to the Founders that they were writing in a problem where the Senate could simply let the government not function. Given their fear of an authoritarian government, it's understandable, but the instability remains, and could grow. What's worse, the Constitution is very difficult to amend, yet in our nightmare scenario, the legislature and the executive may remain locked in a fight where each acts within legitimate constitutional powers yet refuses to cooperate with the others, and actively subverts the government itself. This type of scenario typically does not end well for presidential republics, which is why it's such a dangerous precedent.

[Shryke]

2 hours ago, Veloknight said:

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.

This is pretty standard for the US really which has a governmental system that really isn't very good all things considered. Tons of failure points that require some sort of good faith for the government to function at all.

[Shryke]

1 hour ago, Mudguard said:

Wow, I wasn't expecting this type of response.

So, in your experience, how well do repeated appeals to authority work in educating the masses (a noble goal by the way)?  Do you personally find them convincing?

I'm not sure why you would have a problem with citing law professors on the subject of the law.

[Shryke]

52 minutes ago, Veloknight said:

Honestly, we're already experiencing a crisis, just a lesser one. The Obama years have begun to reveal a fundamental problem with the Constitution: it tends to assume good-faith cooperation from all of our political actors. It literally didn't occur to the Founders that they were writing in a problem where the Senate could simply let the government not function. Given their fear of an authoritarian government, it's understandable, but the instability remains, and could grow. What's worse, the Constitution is very difficult to amend, yet in our nightmare scenario, the legislature and the executive may remain locked in a fight where each acts within legitimate constitutional powers yet refuses to cooperate with the others, and actively subverts the government itself. This type of scenario typically does not end well for presidential republics, which is why it's such a dangerous precedent.

It's also, I believe, not uncommon and the US is kinda weird in that it's lasted this long. AFAIK it's generally attributed to a lack of highly polarized political parties.

As the parties are becoming more and more polarized though the US system of government is seizing up and undergoing, as you say, a long term low-ish level crisis.

[Veloknight]

Just now, Shryke said:

It's also, I believe, not uncommon and the US is kinda weird in that it's lasted this long. AFAIK it's generally attributed to a lack of highly polarized political parties.

As the parties are becoming more and more polarized though the US system of government is seizing up and undergoing, as you say, a long term low-ish level crisis.

The concern for me is, since there's not a really well-defined way to call a constitutional convention, and the Congress is too polarized to amend the Constitution the traditional way, we have no mechanism to fix it. This could lead to escalation at some point - it usually does in other presidential republics.

[Swordfish]

30 minutes ago, Veloknight said:

The concern for me is, since there's not a really well-defined way to call a constitutional convention, and the Congress is too polarized to amend the Constitution the traditional way, we have no mechanism to fix it. This could lead to escalation at some point - it usually does in other presidential republics.

What sort of modifications do you think are most required?