US Politics: 50 shades of Scalia

[Mudguard]

1 minute ago, Kalbear said:

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.

From the Wiki article that you linked earlier that lists all the nominations to the Supreme Court, I counted eight nominees that did not receive a hearing (nominated before 1916) and did not receive a vote.  These eight are listed as "no action."  There is a separate category for "withdrawn" so it does not appear that these eight withdrew their nomination.

So why isn't this precedent for not holding a hearing or having a vote?

[Kalbear]

1 minute ago, Mudguard said:

From the Wiki article that you linked earlier that lists all the nominations to the Supreme Court, I counted eight nominees that did not receive a hearing (nominated before 1916) and did not receive a vote.  These eight are listed as "no action."  There is a separate category for "withdrawn" so it does not appear that these eight withdrew their nomination.

So why isn't this precedent for not holding a hearing or having a vote?

Right - as I said, the 'no action' stuff ends up not being that. By no action they meant that no definitive action was taken. In a few cases that was withdrawn, in others it was a nonbinding senate vote that rejected them. And then a couple others they were simply withdrawn before they could get the necessary votes.

There were none that I found where the nomination just sat around for a while. 

As an example, here's John Read:

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 In 1845, President Tyler nominated him to the Supreme Court of the United States, but his earlier stance against the expansion of slavery into the territories caused the southern Democratic Senators to oppose his nomination, and it was withdrawn

Jeremiah Black:

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In February 1861, President Buchanan nominated him for a seat on the Supreme Court; but his nomination was defeated in the Senate by a single vote on February 21. 

Henry Stanberry:

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 At the conclusion of the trial, Johnson renominated him as Attorney General and also to the Supreme Court, but the Senate would not confirm him.

(from what I can tell they didn't confirm him because they were trying to reduce the amount of people on the SC) and specifically voted him down.

I thought that would have been a precedent for this as well, but it appears not to be. Most Supreme Court nominations were in fact so fast that there was a week turnaround. It appears that the Senate considered working on these to be a fairly important matter, and tended to expedite them. There were some that were withdrawn, but not because of time as far as I can tell - but because the votes weren't there and they were withdrawn before the votes could be cast. 

[Kalbear]

10 minutes ago, Swordfish said:

 

yes.  It is.  it's 'advice'.

No, you keep saying that. Again, a senate action is something that the senate does officially, as part of both the rules of the senate and the history of the senate. This is like saying that the President taking a shit is an Executive Action. Just because a member of the senate does something does not make it a legal senate action.

10 minutes ago, Swordfish said:

Then please cite the law that defines this.

This would be the agreed to rules of the Senate, which are legally binding. 

 

10 minutes ago, Swordfish said:

 

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

200 years of examples, 150 Supreme Court appointments, multiple cases involving the power of article 2 and what it entails. 

 

10 minutes ago, Swordfish said:

 

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.

Again, the notion of what process the constitution requires is something of a complicated one. The Senate is welcome to take this position, but it's pretty likely that the current supreme court would take it in a hearing and demolish it quite quickly. Scalia would laugh his head off at this one, I bet. 

[Swordfish]

6 minutes ago, Kalbear said:

No, you keep saying that. Again, a senate action is something that the senate does officially,

the senate is not required to officially act here.  I thought you'd conceded that already?

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as part of both the rules of the senate and the history of the senate.

This would be the agreed to rules of the Senate, which are legally binding. 

The rules of the senate do not require them to do anything.  At least, not the ones you posted.

There's a lot of wishful thinking here on your part.

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200 years of examples, 150 Supreme Court appointments,

 

Examples are not legally binding, and certainly not constitutionally binding.  As you yourself said, there didn't even used to be hearings.  
 

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multiple cases involving the power of article 2 and what it entails. 

 

If you're going to keep asserting there is case law for this, and then refusing to cite it, there isn't much more to be said here.

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Again, the notion of what process the constitution requires is something of a complicated one. The Senate is welcome to take this position, but it's pretty likely that the current supreme court would take it in a hearing and demolish it quite quickly. Scalia would laugh his head off at this one, I bet. 

This is, again, nothing more than wishful thinking on your part.

[Mudguard]

5 minutes ago, Kalbear said:

Right - as I said, the 'no action' stuff ends up not being that. By no action they meant that no definitive action was taken. In a few cases that was withdrawn, in others it was a nonbinding senate vote that rejected them. And then a couple others they were simply withdrawn before they could get the necessary votes.

There were none that I found where the nomination just sat around for a while. 

As an example, here's John Read:

Jeremiah Black:

Henry Stanberry:

(from what I can tell they didn't confirm him because they were trying to reduce the amount of people on the SC) and specifically voted him down.

I thought that would have been a precedent for this as well, but it appears not to be. Most Supreme Court nominations were in fact so fast that there was a week turnaround. It appears that the Senate considered working on these to be a fairly important matter, and tended to expedite them. There were some that were withdrawn, but not because of time as far as I can tell - but because the votes weren't there and they were withdrawn before the votes could be cast. 

Yeah, most of the "no actions" don't appear to be no actions. I did find one though:

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In February 1853 President Millard Fillmore, a Whig, nominated Micou to fill the United States Supreme Court vacancy created by the death of Justice John McKinley.^[7]Fillmore had tried three times previously to fill the vacancy, but the Senate did not act on the nomination of Edward A. Bradford, George Edmund Badger's nomination was tabled by the Senate, and Benjamin, who had been elected to the Senate for a term beginning on March 4, was confirmed, but declined the position.^[8] Benjamin then recommended Micou to Fillmore, who concurred and sent the nomination to the Senate.^[9]

Micou's nomination was not acted upon by the Democratic-led Senate as it was late in the session and Franklin Pierce also a Democrat, was scheduled to succeed Fillmore as President on March 4, so not acting on Micou's nomination would give Pierce the opportunity to submit a nomination of his own.^[10] Pierce nominated John Archibald Campbell on March 21, and Campbell was confirmed by the Senate on March 25.^[11]

Fillmore nominated Micou just a month before leaving Office, but if they were handling these nominations in a week back then, they could have voted if they wanted to.

[Mudguard]

And another of Fillmore's nominees had a similar result:

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In 1852, Bradford was nominated by President Millard Fillmore to replace the recently deceased Justice John McKinley. The Senate declined to act on the nomination before the session ended and Bradford was not re-nominated.^[2]

The Senate must really have disliked Fillmore.  

ETA: He was nominated in August the year before Fillmore left office, so there was plenty of time to act.

[Swordfish]

Just now, Mudguard said:

And another of Fillmore's nominees had a similar result:

The Senate must really have disliked Fillmore.

 

Ha.  Understandable.  i mean...  Who wants to work for a guy named Millard?

[Kalbear]

3 minutes ago, Swordfish said:

the senate is not required to officially act here.  I thought you'd conceded that already?

I thought so, but Mudguard convinced me I was wrong. 

3 minutes ago, Swordfish said:

The rules of the senate do not require them to do anything.  At least, not the ones you posted.

There's a lot of wishful thinking here on your part.

There are specific rules the senate has to do when they hold a hearing. Those are called 'laws'. 

3 minutes ago, Swordfish said:

Examples are not legally binding, and certainly not constitutionally binding.  As you yourself said, there didn't even used to be hearings.  
 

Actually no; there didn't used to be fully public hearings. The senate has always held at least some kind of vote along with a debate. And when procedures of the senate are followed and codified they do actually have legal basis in common law. Procedures that are followed over and over again, codified and ratified are, actually, legally binding. And as this case indicates, things like advise and consent imply a specific legal right (and only that). 

3 minutes ago, Swordfish said:

If you're going to keep asserting there is case law for this, and then refusing to cite it, there isn't much more to be said here.

This is, again, nothing more than wishful thinking on your part.

I've cited several; the article I liked about the history of advise and consent had 200 years of various laws cited. I'm sorry I didn't find the specific ones, but I figured you could find those on your own. 

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Fillmore nominated Micou just a month before leaving Office, but if they were handling these nominations in a week back then, they could have voted if they wanted to.

Now this is probably a really good counterexample - they didn't act for one month, the guy died of a brain injury and they did so specifically so that Pierce could nominate. That at least gives precedent, though it's an odd one.

[Ser Scot A Ellison]

Swordfish,

If they refuse to even hold hearings they will be shooting themselves in the foot politically.

[Swordfish]

4 minutes ago, Kalbear said:

There are specific rules the senate has to do when they hold a hearing. Those are called 'laws'. 

 

Indeed. But none of those rules require them to hold hearings or vote on SC nominees.  

 

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Actually no; there didn't used to be fully public hearings. The senate has always held at least some kind of vote along with a debate. And when procedures of the senate are followed and codified they do actually have legal basis in common law.

Even if this is correct, and it's dubious at best, because something is legally binding does not make it required by the constitution.  

Common law is not the constitution.

And of course, the converse is also true.  just because something has always been done, does not necesarily make it legally binding.

 

 

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I've cited several; the article I liked about the history of advise and consent had 200 years of various laws cited. I'm sorry I didn't find the specific ones, but I figured you could find those on your own. 

 

Ha!  If you can't find the laws that support your point, then perhaps you should stop saying it as though it's fact.

I'm not inclined to try to find something to support your point that you couldn't even find yourself.

 

More:

https://verdict.justia.com/2016/02/26/the-grave-risks-of-the-senate-republicans-stated-refusal-to-process-any-supreme-court-nominee-president-obama-sends-them

 

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This simply means that the president may not appoint a justice without the Senate’s “consent” or approval, not that the Senate must express its lack of consent in any particular way or along any particular timeline. (The clause does use the word “shall,” but that sometimes mandatory verb applies to the subject of the sentence—the president—and not to the Senate. And since a president can always decline to issue a commission to a justice, it is not even clear that the president is under any mandatory legal duties here.)

If we look at other constitutional settings in which one entity must consent to the proposal of another actor before the proposal can take legal effect, we have as a general matter not inferred any duty on the part of the second actor to do anything. For example, no credible argument can be made that after the House of Representatives passes a bill and sends it to the Senate for consideration, the Senate must hold hearings and/or take votes. Or that the Senate has a duty to take up a treaty desired by the president. Or that state legislatures have a duty to debate and vote on federal constitutional amendments that Congress proposes (and that require ¾ of the states to ratify before they can take effect). In fact, in one place the Constitution does seem to create a duty on the second actor to make an up-or-down decision; if the president does not return a bill passed by Congress to Congress with reasons for his veto within 10 days, the bill becomes law. So when the Constitution seeks to attach some legal consequences to inaction within a particular timeline, it seems to know how to say so.

 

[Swordfish]

5 minutes ago, Ser Scot A Ellison said:

Swordfish,

If they refuse to even hold hearings they will be shooting themselves in the foot politically.

Maybe, maybe not.

But that is not the discussion we are having.

Are you in agreement with those arguing that the senate has a constitutional duty to vote?

[Manhole Eunuchsbane]

3 minutes ago, Swordfish said:

Maybe, maybe not.

But that is not the discussion we are having.

Are you in agreement with those arguing that the senate has a constitutional duty to vote?

They have a common sense duty to vote. It's called "doing your fucking job".

[Kalbear]

I found an article that has 40 different cited cases with advice and consent, swordfish. Do you really want me to spoonfeed you the citations in the article too? Heck, you even said that you would read it and thanked me for it.

[Guest]

1 hour ago, Mudguard said:

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:

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.

 True, it also notes how controversial that is. I stand with 350 aw professors from earlier in the thread.  I believe the founders would be appalled at the way the Constitution is over interpreted and how it is used to defend a disfunctional government. I , and many others, believe the same resonableness standard that applies in most other areas of law should also apply here.   Is it reasonable that the framers decided that certain portions of the government could simply decide not to do what is required of it?  I think that is an insane outcome...but that is where we are and one reason our government is utterly broken.

[Ser Scot A Ellison]

Swordfish,

I think the Senate does have a duty to consider the nominee but there is no usable mechanism, other that political fallout, to force the Senate to hold hearings.  That said the political cost of acting like idiots should be sufficient to make the doofuses do their job.  They are focusing attention on why control of the Senate is important and giving their opponents ammunition to use against them in upcoming campaigns.

[Swordfish]

2 minutes ago, Manhole Eunuchsbane said:

They have a common sense duty to vote. It's called "doing your fucking job".

That may well be true.

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

 

Just now, Kalbear said:

I found an article that has 40 different cited cases with advice and consent, swordfish. Do you really want me to spoonfeed you the citations in the article too? Heck, you even said that you would read it and thanked me for it.

I would like you to back up your assertion that there is case law supporting the idea that advice and consent construes a constitutional duty on the senate, or else to stop making that claim.  None of the links you've provided have even come close to supporting your position on this.

I'm reading your article now, and so far I have seen nothing in it that supports that position either.

[Swordfish]

2 minutes ago, Ser Scot A Ellison said:

Swordfish,

I think the Senate does have a duty to consider the nominee but there is no usable mechanism, other that political fallout to force the Senate to hold hearings.  That said the political cost of acting like idiots should ne sufficient to make the doofuses do their job.  They are focusing attention on why control of the Senate is important and giving their opponents ammunition to use against them in upcoming campaigns.

So then that is a 'No, I do not believe they have a constitutional duty to vote on the nominee'?

Or a 'yes, I do believe they have a constitutional duty to vote on the nominee'?

It's a pretty simple question, Scot.

[Mudguard]

1 minute ago, Manhole Eunuchsbane said:

They have a common sense duty to vote. It's called "doing your fucking job".

Yeah, even if there isn't a constitutional requirement that the Senate votes on the nomination, I think you can argue that they aren't doing their job.  It would be ridiculous for the Senate to decide to not hold any votes for the entire 4 year term of a President, even if it was permitted constitutionally.  And you can certainly make the argument that not voting for a year, as in this case, is just about as ridiculous.

It's pretty obvious that the Democrats are going to make this argument this November, and the Republicans are well aware too.  It will be interesting to see how this plays out.  

[Swordfish]

OK, Kal, i read your article.  reminder: (http://dlj.law.duke.edu/2015/05/advice-and-consent-in-the-appointments-clause-from-another-historical-perspective/)

 

Though I did not find anything in there that actually supports the point you are trying to make, I did find a few gems (though i doubt you will see them that way)

 

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The delay of nominations by both parties, sometimes for years after hearings, [46] lends credibility to Justice Kennedy’s reply. The process for many appointees has slowed considerably, leading one commentator to write in 2010, “The data indicate that the entire nomination-and-confirmation process (from when the President first learned of a vacancy to final Senate action) has generally taken almost twice as long for nominees after 1980 than for nominees in the previous eighty years.” [47] Judge William A. Fletcher, for example, was first nominated to the Ninth Circuit Court of Appeals in April of 1995. He had his first hearing in December of 1995 and was favorably reported out to the Senate in May 1996. [48] The Senate of the 104th Congress did not take a vote on the report, and the nomination died. In January of 1997, he was re-nominated. A second hearing was held in April of 1998. He was reported out favorably in May of 1998. Finally, in October of 1998, he was confirmed. [49] His multiple nomination history without Senate votes was shared by several well-known judges and officials. [50]

So much for precedent I guess.

 

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At one point there were fifty-nine unfilled executive branch positions with waiting nominees and seventeen vacant judgeships with waiting nominees. [67] Today, there are forty-five federal judgeship vacancies with only ten nominees to fill them, [68] indicating that political polarization perhaps makes the president reluctant to nominate, potential nominees reluctant to accept, and the Senate reluctant to expeditiously advise and consent.

Is the president abdicating his constitutional duties by not making these nominations?

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One tradition is called “blue-slipping,” a form of senatorial courtesy. This informal practice can be traced back to 1917 [72] and is used only by the Senate Judiciary Committee—not by other Senate committees. [73] It allows the senators of the nominee’s home state to essentially veto a nomination by not returning a blue piece of paper indicating approval. [74] The blue slip has been lauded as another layer of scrutiny in the role of advisor, but also roundly criticized as a political, not a professional, safeguard. [75] Another tradition involves “holds,” where senators can block or delay a nomination by asking for such a hold from a party leader. [76] While holds are primarily delay tactics, they can also terminate a nomination.

Apparently, hearings and votes are not the only tools the senate uses when considering nominees.

 

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The creation of a hearing step in the process also has had various ramifications. While a hearing permits the nominee to argue his or her position and assuage skeptical senators, it also could become an additional obstacle. If a nominee did not get a hearing, for example, the Senate would not take any action, causing some nominations to languish unless the candidates were re-nominated. As noted earlier, Chief Justice Roberts was initially nominated by President George H. W. Bush to become a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Because Roberts did not receive a hearing, his nomination was effectively ended.

 

And finally:

 

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There are no substantive limits [77] to the exercise of the Senate’s advice and consent powers, either stated or implied.

 

Good article.  Thanks for posting it.

[Kalbear]

On bradford, it's not quite as good a precedent as I thought. He was nominated right before the Senate adjourned - like they were having their vote to adjourn at the same time - and when they reconvene Pierce was the president elect and fillmore didn't bother renominating.

 

So they were not doing anything. Sorry, Linking on the phone isn't working but it's the 6th link on books.google for bradford.