US Politics: 50 shades of Scalia

[Kalbear]

2 minutes ago, Swordfish said:

I'm arguing that they have given their advice, which was 'don't nominate in an election year', and if you do we are going to withhold consent (and again, you can't take the word 'consent' literally here, for reasons that should be obvious).

As a pre-requisite condition.  Their consent is required in order for a nominee to sit on the court.

So no, I don't think they are meaningless.

You're arguing from a definitive sense of the words. Those words have a specific interpretation in law. Much like 'well regulated militia' doesn't mean  that you have an overwatch of people making sure militia would do things. Advise and consent meant something specific in the framers, has evolved as time goes on, and is now defined as 'hold a confirmation hearing' by 100 years of senate process and law. 

You're right that you could choose to interpret 'advise' that way. Much like you could choose to interpret 'regulate' as making sure there are very strict oversight laws. This is, however, not at all how constitutional interpretation works in the US. 

[Guest]

6 minutes ago, Swordfish said:

I'm arguing that they have given their advice, which was 'don't nominate in an election year', and if you do we are going to withhold consent (and again, you can't take the word 'consent' literally here, for reasons that should be obvious).

 

 They do not have the power of nomination, the Constitution clearly states that power falls to the President so what they want for a nomination is completely and utterly irrelevant. They only have a choice after a nomination is made, and their actions must be reasonable.

[Mudguard]

2 minutes ago, Kalbear said:

Well, there's the first confirmation hearing - 1916 - based on a fairly controversial candidate (they were a Jew AND were working in the public sector). Prior to that, confirmation hearings were specifically stated to be part of the duties based on the Article  II clause but could be held either before or after a justice was selected. But basically for 100 years we have specific prior art on the duties of the senate with respect to confirmation hearings.

Your citation doesn't point to any statutory law or case law that supports your definition of "advise and consent."  The article just says that the Senate didn't even hold confirmation hearings for Supreme Court nominees until 1916, which means that it's clear that there was no constitutional requirement to hold these hearings, otherwise they would have been holding these hearings from the start.  You would think that the drafters of the Constitution would know whether hearings were required, and since they didn't have them, it's pretty clear that there's no constitutional requirement.

There's no indication from your article that when they started having the hearings in 1916, they specifically found that advise and consent meant that they had to have the  hearings.

[Swordfish]

10 minutes ago, Swordfish said:

 

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You're arguing from a definitive sense of the words. Those words have a specific interpretation in law.

OK.  So cite the law that demonstrates the interpretation you are pushing.  If there was something in that link you provided that demonstrates this, then I apologize, but  I'm completely missing it.

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They do not have the power of nomination, the Constitution clearly states that power falls to the President so what they want for a nomination is completely and utterly irrelevant. 

No.  it isn't.  Since, you know, they have the power to reject the nominee.

 

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Advise and consent meant something specific in the framers, has evolved as time goes on, and is now defined as 'hold a confirmation hearing' by 100 years of senate process and law. 

But again, the senate can change their process at any given time.  Do you disagree with this?

 

[Guest]

Jeepers, rejecting the nominee is within their power, telling the President not to exercise HIS constitutional power of nomination is not.  This is not difficult folks!

[Guest]

1 minute ago, Mudguard said:

Your citation doesn't point to any statutory law or case law that supports your definition of "advise and consent."  The article just says that the Senate didn't even hold confirmation hearings for Supreme Court nominees until 1916, which means that it's clear that there was no constitutional requirement to hold these hearings, otherwise they would have been holding these hearings from the start.  You would think that the drafters of the Constitution would know whether hearings were required, and since they didn't have them, it's pretty clear that there's no constitutional requirement.

There's no indication from your article that when they started having the hearings in 1916, they specifically found that advise and consent meant that they had to have the  hearings.

 Yes, before 1916 they simply voted so the process went even faster. I am sure they can avoid hearings and simply vote and fulfill their constitutional requirements.

[Swordfish]

12 minutes ago, Swordfish said:

 

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Jeepers, rejecting the nominee is within their power, telling the President not to exercise HIS constitutional power of nomination is not.  This is not difficult folks!

I'm just going to leave you with this, because I don't think we are making progress

http://www.bloombergview.com/articles/2016-02-17/obama-and-senate-are-both-wrong-about-the-constitution

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The Obama administration could argue that, so long as the statutory number of justices is nine, it’s obligated to nominate a replacement and the Senate is obligated to give or withhold its consent. On this view, only a statute passed by Congress and signed by the president can change the total number of justices.

But this would be highly formalistic argument, inconsistent with the functionalism that the administration has rightly espoused in the immigration case. The word “consent” implies a choice by the Senate to say yes or no. Add the word “advice,” which isn’t usually given a technical constitutional meaning in this context, implies a right to express a view.

 

[Guest]

5 CFR 2634.606 (CFR = Code of Federal Regulations): https://www.law.cornell.edu/cfr/text/5/2634.606

And here is the best treatise on "advise and consent": http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf

Enjoy gentlemen. I leave you with the actual legal discussion, not Bloomberg (which I love) but instead with law professors and actual legal interpretation.

[Swordfish]

25 minutes ago, Swordfish said:

 

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5 CFR 2634.606 (CFR = Code of Federal Regulations): https://www.law.cornell.edu/cfr/text/5/2634.606

And here is the best treatise on "advise and consent":http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf

Enjoy gentlemen. 

From your own link:

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The Constitution thus calls for three steps before a presidential appointment is
complete: first, the President’s submission of a nomination to the Senate;
second, the Senate’s advice and consent; third, the President’s appointment of
the officer, evidenced by the signing of the commission. All three of these
steps are discretionary.

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President Bush suggests that the Senate bears a “constitutional
obligation” to act on judicial nominations,236 but it is difficult,
if not impossible, to demonstrate that the Framers would
have agreed with such an assertion.

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Just as the Constitution contains no explicit requirement that
the President act in the pocket veto context, it contains no explicit
obligation that the Senate act to demonstrate its lack of
consent to a judicial nomination.

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In light of these differences, senatorial advice and consent to
treaties and nominations appears to fall into the discretionary
category. The structure of the clause provides no specific directive
for the Senate to act; indeed, the language of the clause
makes Senate advice and consent a condition precedent to the
President’s power to appoint.234

 

Glad you came around to my way of thinking.

[Kalbear]

2 minutes ago, Mudguard said:

Your citation doesn't point to any statutory law or case law that supports your definition of "advise and consent."  The article just says that the Senate didn't even hold confirmation hearings for Supreme Court nominees until 1916, which means that it's clear that there was no constitutional requirement to hold these hearings, otherwise they would have been holding these hearings from the start.  You would think that the drafters of the Constitution would know whether hearings were required, and since they didn't have them, it's pretty clear that there's no constitutional requirement.

There's no indication from your article that when they started having the hearings in 1916, they specifically found that advise and consent meant that they had to have the  hearings.

Ah, gotcha. No, there was no constitutional requirement to hold hearings prior to that time; there was a constitutional requirement for the senate to do some action regarding appointments, but what it was had some latitude.

My point is not that there's a requirement to have a hearing, but there is a requirement that the senate - as a legislative body - take some actual action. This appears to not be in dispute. Specifically, it falls under the Senate Judiciary Committee to take action. Its rules on this aren't particularly vague, either.

Here's the list of every single Supreme Court justice. In this, there's no example of them doing anything other than voting in a hearing - closed or (in 1916) open. Some candidates were rejected, some were withdrawn, and a couple had no official vote (because they basically got withdrawn) - but I could not find a single example where the senate simply chose to not vote, not do a hearing or not  take any action once informed with the nomination. 

If you've got some time, a Duke law professor did a history of the advise and consent phrase analysis. That might be more of what you're looking for.

[Mudguard]

3 minutes ago, GrapefruitPerrier said:

5 CFR 2634.606 (CFR = Code of Federal Regulations): https://www.law.cornell.edu/cfr/text/5/2634.606

And here is the best treatise on "advise and consent": http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_White.pdf

Enjoy gentlemen. 

The federal regulation you cited doesn't impose any requirements on the Senate.  It just says a nominee has to furnish information to the committee before a hearing.

One of the treatise's conclusion is:

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Marshalling these findings, this Article concludes that this evidence does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations.

The treatise appears to support the position that the Senate is not require to do anything, hold hearings or even vote, on the President's nomination.

[Kalbear]

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The treatise appears to support the position that the Senate is not require to do anything, hold hearings or even vote, on the President's nomination.

Yeah, that's the conclusion I'm reaching as well - in which case that interpretation would mean that if the Senate chooses to do nothing the nomination would go forward.

[Mudguard]

Just now, Kalbear said:

Yeah, that's the conclusion I'm reaching as well - in which case that interpretation would mean that if the Senate chooses to do nothing the nomination would go forward.

No, the Constitution is explicit that the President can only appoint with the consent of the Senate.  You'd have to argue that not doing anything is consent.

[Swordfish]

3 minutes ago, Kalbear said:

Ah, gotcha. No, there was no constitutional requirement to hold hearings prior to that time; there was a constitutional requirement for the senate to do some action regarding appointments, but what it was had some latitude.My point is not that there's a requirement to have a hearing, but there is a requirement that the senate - as a legislative body - take some actual action.

Which they have.

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This appears to not be in dispute. Specifically, it falls under the Senate Judiciary Committee to take action. Its rules on this aren't particularly vague, either.

Here is the very first rule from that link:

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1. When nominations shall be made by the President of the United States to the Senate, they shall, unless otherwise ordered, be referred to appropriate committees; and the final question on every nomination shall be, "Will the Senate advise and consent to this nomination?" which question shall not be put on the same day on which the nomination is received, nor on the day on which it may be reported by a committee, unless by unanimous consent.

But of course, the rules of the senate are not, in fact the constitution.  So a violation of these rules does not seem to me to be the equivalent of failing to meet a constitutional duty.

 

Quote

 

If you've got some time, a Duke law professor did a history of the advise and consent phrase analysis. That might be more of what you're looking for.

Thanks.  I'll take a look.

[Kalbear]

2 minutes ago, Swordfish said:

Which they have.

No, they haven't. McConnell saying that they won't hold hearings is not a senate action, legally; he has to propose it on the floor of the senate and make it a motion.

2 minutes ago, Swordfish said:

Here is the very first rule from that link:

But of course, the rules of the senate are not, in fact the constitution.  So a violation of these rules does not seem to me to be the equivalent of failing to meet a constitutional duty.

Again, prior law.

Quote

No, the Constitution is explicit that the President can only appoint with the consent of the Senate.  You'd have to argue that not doing anything is consent.

But you literally just said that this was discretionary. And the article linked is arguing that as well - and arguing that the senate is under no requirement to confirm anyone. The article's whole point was to argue against Bush being blocked in appointing justices that he chose, after all; interpreting the point of the article to mean that the senate MUST do this is a bit weird. 

[Kalbear]

And from that link, well, I think that's bogus. In the same place Hamilton espouses the idea of advice and consent, he clarifies further:

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Hamilton described the Senate’s consent action in bi‐ nary terms: “they can only ratify or reject the [Executive’s] choice.”151 Later, he describes the Senate’s “consent” power in “veto” terms: “their right of negative upon his nominations”;152 “[t]he censure of rejecting a good [nomination] . .

Both are affirmative acts by the senate, not the senate head. And both are not 'do nothing'. They can ratify, or they can reject. 

[Mudguard]

Just now, Kalbear said:

But you literally just said that this was discretionary. And the article linked is arguing that as well - and arguing that the senate is under no requirement to confirm anyone. The article's whole point was to argue against Bush being blocked in appointing justices that he chose, after all; interpreting the point of the article to mean that the senate MUST do this is a bit weird. 

I think you are misinterpreting the law review article.  According to the law review article, which is not case law and may be wrong or right, it's discretionary for the Senate to act on the nomination.  From the article:

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Despite suggestions by the President, various Senators, and numerous commentators that the Senate has a constitutional obligation to act on judicial nominations, the text of the Consti‐ tution contains no such obligation. Moreover, the suggestion that the obligation is implicit in the Advice and Consent Clause does not appear to comport with the Framers’ understanding of the term. This analysis is limited, of course, to a considera‐ tion of (1) the Framers’ reliance on the example of the Com‐ monwealth of Massachusetts’s advice and consent model; and (2) the structure of their choice of constitutional text, particu‐ larly by contrast with James Madison’s failed alternative to ad‐ vice and consent.  

President Bush suggests that the Senate bears a “constitu‐ tional obligation” to act on judicial nominations,236 but it is dif‐ ficult, if not impossible, to demonstrate that the Framers would have agreed with such an assertion.   The Framers’ understand‐ ing of the terms of the Constitution is not necessarily synony‐ mous with the reasonable meaning of the Constitution’s terms as written, but understanding what the Framers may have un‐ derstood a term to mean certainly is a useful starting point for further analysis.

That's the entire conclusion at the end of the article.  I don't get from skimming the article that it was against Bush being blocked.

The Constitution is very clear, explicitly so, that the President still needs the consent of the Senate in order to appoint a Supreme Court justice:

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Section 2.

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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.

However, it doesn't place any requirements on the Senate in how the Senate is to provide or withhold that consent.

[Kalbear]

3 minutes ago, Mudguard said:

The Constitution is very clear, explicitly so, that the President still needs the consent of the Senate in order to appoint a Supreme Court justice:

However, it doesn't place any requirements on the Senate in how the Senate is to provide or withhold that consent.

That's true - but it's pretty clear from other documents what it meant. And more importantly usually prior precedent and the like take a lot of this into play. Hamilton's idea of approve or reject explicitly speaks to this. Choosing to do nothing - no rejection at all - there's no basis for that whatsoever.

I don't think that there is a requirement for a public hearing (though again, Hamilton et al specifically spoke against what he called cabals of backroom deals), but there is very clearly per framer conversations and precedent a specification of a vote of some kind by the senate as the fulfilling of the advise and consent. It might be difficult to find any case law saying otherwise because, as far as I can tell, it has never ever happened or even been broached otherwise. Even Biden didn't attempt to say this; he said that they would simply reject the candidates, which is a far more defensible position given prior art.

[Red Tiger]

On 16-3-2016 at 5:34 PM, Fez said:

Side note: Its real weird for me to be typing 'Garland.' I keep thinking, "why is Obama nominating the guy who created Kuja and tried to destroy Gaia?'

....Nice

[Swordfish]

24 minutes ago, Kalbear said:

No, they haven't. McConnell saying that they won't hold hearings is not a senate action,

 

 

yes.  It is.  it's 'advice'.

 

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legally; he has to propose it on the floor of the senate and make it a motion.

 

Then please cite the law that defines this.

 

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Again, prior law.

 

You keep saying this.  What prior law are you talking about?

 

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That's true - but it's pretty clear from other documents what it meant. And more importantly usually prior precedent and the like take a lot of this into play. Hamilton's idea of approve or reject explicitly speaks to this. Choosing to do nothing - no rejection at all - there's no basis for that whatsoever.

 

Whether or not there is a basis for it, there's no constitutional requirement that they have a vote on it. Or a hearing.  or anything else, really.