US Politics: 50 shades of Scalia

[Guest]

1 hour ago, Ser Scot A Ellison said:

GfP,

Sure they could, and it the Senate ignores the Court order, what happens?

 If the Senate ignores the Supreme Court it could get ugly.  That has not happened  before so who really knows. Does the SC have McConnell arrested? Here is an interesting discussion from the very far right and the center of judicial interpretation: http://reason.com/blog/2015/06/04/can-the-president-lawfully-ignore-a-supr

[Ser Scot A Ellison]

Pres. Jackson ignored the Supreme Court without any consequences.

[Guest]

Roosevelt had problems with the court so he threatened to increase the number of justices to 15. http://www.nytimes.com/learning/general/onthisday/big/0205.html

[Shryke]

2 hours ago, Ser Scot A Ellison said:

BR,

The Constitution deals with this expressly.  If the Senante recesses without dealing with the nomination the nominee can get a "recess appointment".  Otherwise, no, failure to act is not construed as assent.  

The problem, as I see it, is that failure to act by any branch does not give rise to power in the other two branches to require that the intransigent branch act as it has a duty to act.  

Well, Recess Appointments actually do cover that. The problem is the Senate never goes on recess now exactly to prevent recess appointments and the SCOTUS basically declined to get involved in fixing that issue by saying the Senate can decide for itself when it's on recess.

Which is, realistically, just kicking the can down the road and letting the dysfunction continue. Even if it is perhaps the only decision the SCOTUS can make.

[Guest]

Yes,the Senate currently makes a junior member stay in town and go speak on the floor every day so they are never on recess.  Insane, unworkable government.

[Ser Scot A Ellison]

Shryke,

I can't see the Supreme's accepting a member who is unconfirmed and not a recess appointment.

[Mr. Chatywin et al.]

On 3/18/2016 at 4:33 PM, Swordfish said:

Maybe.  But now you're talking about politics, not governance.

Of course it's political. I don't think the constitutionality of it has ever been truly tested. Regardless, it sets a dangerous precedent that will be further abused down the road.

 

[maarsen]

18 hours ago, GrapefruitPerrier said:

Yes,the Senate currently makes a junior member stay in town and go speak on the floor every day so they are never on recess.  Insane, unworkable government.

Just a question here. Is there no minimum number of senators required for a quorum? If there is a minimal number, what stops the Dems from  slipping in a majority of one or two senators and passing legislation? 

[lokisnow]

19 hours ago, GrapefruitPerrier said:

Roosevelt had problems with the court so he threatened to increase the number of justices to 15. http://www.nytimes.com/learning/general/onthisday/big/0205.html

I do think there should be as more justices on the bench, as many as there are courts of appeal. And we should have more courts of appeals. And we're several hundred justices short on the district courts too. Need a big new judicial reform bill authorizing new judgeships.

***

mcconnell said this weekend that there will be no lame duck vote on garland even if they lose the senate and the presidency.

***

an analysis by rule 22 has garland with a ceiling of 60 yes votes, since many of these have already confirmed their opposition, the ceiling is much lower, also cool charts showing the distribution of senate votes differing in 1997 and 2016.

http://rule22blog.org/2016/03/18/simulating-the-senate-vote-to-confirm-merrick-garland/

though if McCain loses his primary tomorrow he might flip to a yes.

***

monkey cage analyzed why senators might vote to confirm, it depends on the distribution of opinions in their state, so if you want garland confirmed, contact your republican senator to let them know. Snail mail letters in general are most impressive.

https://www.washingtonpost.com/news/monkey-cage/wp/2016/03/18/how-american-voters-really-can-influence-merrick-garlands-confirmation-battle/

[Mr. Chatywin et al.]

Stay classy, Mitch McConnell:

http://thinkprogress.org/justice/2016/03/20/3761908/mcconnell-no-new-supreme-court-justice-until-the-nra-approves-of-the-nominee/

 

[Fez]

1 hour ago, maarsen said:

Just a question here. Is there no minimum number of senators required for a quorum? If there is a minimal number, what stops the Dems from  slipping in a majority of one or two senators and passing legislation? 

Quorum requires a majority of senators to be present. Which means if a minority party ever tried this, the majority members there could just leave the floor and that would be the end of it.

On the other hand, that may be a way of forcing the senate to go into recess even if the majority doesn't want it to. I'm not well read enough on senate rules to know for sure though. And also, it would only really work if the senate was split 50-50. Right now for instance, Democrats would need there to be 5 Republicans on the floor to try to force anything through, and only 1 is needed to do the whole "we're not really in recess" thing.

[Ser Scot A Ellison]

The SCOTUS held that the Mass. Taser ban is unconstitutional in an 8-0 per curiam decision based upon exisiting 2nd Amendment precident.  Will the NRA back off on this nominee now since it appears Stare Decisis means something to the SCOTUS?

http://www.thetruthaboutguns.com/2016/03/johannes-paulsen/392843/

 

[TrackerNeil]

3 hours ago, Ser Scot A Ellison said:

The SCOTUS held that the Mass. Taser ban is unconstitutional in an 8-0 per curiam decision based upon exisiting 2nd Amendment precident.  Will the NRA back off on this nominee now since it appears Stare Decisis means something to the SCOTUS?

http://www.thetruthaboutguns.com/2016/03/johannes-paulsen/392843/

 

No. The NRA wants a nominee who will OK a law requiring nine-year-olds to carry and train with firearms. Is Garland that nominee? Probably not.

[Swordfish]

On 3/19/2016 at 4:39 PM, TrackerNeil said:

Depends how long they delayed but, yes, potentially.

Ha!  Can I get some syrup with that waffle?

So what is the cut off?  How much time has to elapse in order for this alleged constitutional duty to be considered abdicated?

 

[TrackerNeil]

2 minutes ago, Swordfish said:

Ha!  Can I get some syrup with that waffle?

So what is the cut off?  How much time has to elapse in order for this alleged constitutional duty to be considered abdicated?

Like with many complicated issues, we have to apply our brains. Perhaps to you that is a "waffle", but to me it is nuanced thinking appropriate to the issue. 

[Swordfish]

13 minutes ago, TrackerNeil said:

Like with many complicated issues, we have to apply our brains. Perhaps to you that is a "waffle", but to me it is nuanced thinking appropriate to the issue. 

Ha!  No, If you're suggesting that there is some kind of time limit when it becomes and abdication of an explicit Constitutional duty, but are unable or more likely, unwilling, to put a time limit on it, and even if you could define the limit, well then it would only be abdicating potentially? That's waffling, not nuance.  

So...  Is it correct to assume that you can't, or won't, even attempt to quantify the delay that results in abdication?

Here a few open federal judge appointments, and how long they've been without a nominee(and i won't even bother including the ones he JUST made a nomination for):

• Court of Appeals for the Fifth Circuit (Texas) - vacant since 08/01/2012 - no nominee.

• Southern District of Texas - vacant since 6/01/2011 - no nominee.

• Court of Appeals for the Seventh Circuit (Wisc.) - vacant since 01/07/2010 - no nominee.

Southern District of New York

• 1 vacancy
  • Vacant since: 08/01/2015
• No nominee

Full list is here, so you can see just how long some of these positions have been without a nominee:

http://judicialnominations.org/judicial-vacancies

I think this is particularly interesting because of the different way in which these judges get nominated, and it's impact to advise and consent, but answer me this....

Is the president abdicating his constitutional duty here in not making these nominations?  

 

 

 

 

 

[Kalbear]

Quote

Just a question here. Is there no minimum number of senators required for a quorum? If there is a minimal number, what stops the Dems from  slipping in a majority of one or two senators and passing legislation? 

It doesn't in practice matter, as the hearing is conducted by the senate judiciary committee, and that is held at the whim of the judiciary committee lead. If he doesn't want it to go, it doesn't go. 

In theory Obama could instruct the Senate to hold a vote, but that wouldn't do very much. Also in theory a senator could propose a vote on the floor and bypass the judiciary committee completely, and that would 'count' as the advise and consent part, but it's a pretty nuclear option.

[TrackerNeil]

15 minutes ago, Swordfish said:

Ha!  No, If you're suggesting that there is some kind of time limit when it becomes and abdication of an explicit Constitutional duty, but are unable or more likely, unwilling, to put a time limit on it, and even if you could define the limit, well then it would only be abdicating potentially? That's waffling, not nuance.  

This is getting really tedious, so I'm going to sum up my position. When the Senate delays a nomination because there's an election in two days, or there was a major terrorist attack, that's understandable and OK. When the Senate delays a nomination because it has decided to essentially strip the current president of his appointment power, that is constitutionally suspect. I doubt the courts would ever get involved, but it's still suspect. If calling that waffling gets you all excited, go for it, but I'm not engaging this absurd argument any longer. 

[Swordfish]

16 minutes ago, TrackerNeil said:

This is getting really tedious, so I'm going to sum up my position. When the Senate delays a nomination because there's an election in two days, or there was a major terrorist attack, that's understandable and OK. When the Senate delays a nomination because it has decided to essentially strip the current president of his appointment power, that is constitutionally suspect. I doubt the courts would ever get involved, but it's still suspect. If calling that waffling gets you all excited, go for it, but I'm not engaging this absurd argument any longer. 

So you are just not gonna comment on whether the vacancies for which there are no nominees is an abdication by the president of his constitutional duty?

Color me shocked.

And yes, i would say 'constitutionally suspect' is a far cry from a definite violation of an explicit constitutional duty.  So kudos to you for revising your stance.

[lokisnow]

People need to understand that a Supreme Court APPOINTMENT is the same as all other APPOINTMENTS

Thus, if we create a rule for which there is an acceptable time limit forcing the senate to act, that rule has to apply to all other appointments. This is a pretty good idea, but we cannot have all this outrage over the Senate doing nothing--which is a routine Senate practice in regards to appointments the senate does not like--unless we are going to reform the process for everything.

How the Senate is acting regarding Garland is how the Senate routinely acts towards all other appointments.

 

Swordfish, I understand your point regarding judicial vacancies, however there is a difference there. This difference is in regards to Senate norms as they are practiced with respect to judicial vacancies, like the filibuster and committee hearings, these norms are obviously merely senate rules or patterns of behavior, they are not strictly within the constitution and perhaps are sometimes not even codified as explicit rules within the Senate. Obama--and any president--leaving those judicial vacancies open without an appointment is not an abdication of his constitutional duty because the Senate norms have traditionally reserved those judicial appointments to be subject to an additional layer of advise and consent. Normally, the Senators representing a state affected by the vacancy must recommend to the president judges as possible selections for that vacancy. Pre advise and pre consent, I suppose. The president then makes a nomination back to the senate and they engage in their typical advise and consent procedures. The president is free to nominate whoever he wants and without pre-authorization by the Senate, but that would be a massive violation of norms and the Senate would regard it as a huge encroachment on their authority. So Obama not nominating judges to some vacancies is an attempt by him, and other presidents, to preserve the normal operational functioning of the judicial process. Unfortunately this process is obviously a terrible method as it results in these sorts of enormous multi-year vacancies, but I don't think it's an abdication of duty to abide by the norms that keep government functioning.