Time for Obama to withdraw Merrick Garland's nomination

She has to be elected first and every day that passes makes that less likely and the coming explosion in Philly won't help.

 

How did I say that they have no say in matters? Instead, what they are doing is denying the President's power of appointment - which is Unconstitutional, period.

All these alleged "abuses" are simply pitiful, as a pretext for the direct obstruction of Article II Sec. 2 of the Constitution (and the direct violation of the Separation of Powers it entails). I'd say your complaints at worst represent normal give-and-take about the limits of the power of the Executive vs. the Legislature, particularly in times when the Legislature is engaged in a policy of scorched-earth obstruction against him.

Furthermore, it disingenuous in the extreme to cite a) as "not respecting the limitations" of this office, since Libya operations were on par with many missions undertaken by previous Presidents in accord with the War Powers Act, including Panama and Kosovo. Some Republicans have only conveniently decided to claim that Obama overstepped his powers here after-the-fact, when Libya has become such a basketcase (though certainly it would have been worse by now, without Western intervention).

Your citation of d) is also toothless, since that was a maneuver which Obama attempted in response to the unprecedented (and also Unconstitutional) refusal of the Republicans to take votes on the Executive's nominees for the bench. The Supreme Court ruled against Obama there, and Obama duly complied. Hardly an abuse of power.

Look, you're the one who's making the Tu Quoque fallacy, not me. I'm not the one saying that Obama has nominated Garland because of all the mean things the Republicans have done. I'm saying that Senate Republicans, in refusing to give Garland a hearing and a vote, are directly violating their oaths to the Constitution, and violating the Separation of Powers, in the bargain.

And all I'm saying now, is that Obama needs to withdraw Garland's nomination, in preparation for the appointment of the Liberal equivalent of Scalia to the bench, next year.

 

No, the risk is too great that McConnell (a pure weasel of a politician) will engineer a hurry-up "midnight" confirmation of Garland sometime after the Conventions, if it looks like Trump is going to get wiped out in the general election. We need to remove that as an option for him. Leaving Garland out there has no downside for Senate Republicans; all the risk is on our side.

 

You need to re-read the Constitution, for comprehension this time. Article II Sec. 2 is clear: the President - not the Senate - is the agent who makes the appointment. The power - and the obligation - of appointment are the President's. The Senate has veto-power over the President's appointee, but they must exercise it through positive "advice and consent." They cannot simply ignore the President's nominee, since that is tantamount to a situation where the President has not nominated anyone - which is a violation of the Constitution. The Senate cannot interpret their advice and consent role in such a way that puts the President in violation of his duties. The Senate can reject particular appointees all day long; what they cannot do, is nullify the President's appointment-power itself.

 

Apparently they can nullify his power, as they are doing. Additionally, Obama knows that the does not have the power to declare his nominees as appointed or he would have already done so.

Perhaps the comprehension needs to be applied by your side.

 

Man, are you on an ideologue's bender or what. Garland is absolutely a compromise-pick, he's been previously lauded (praised to the skies, even) by Republican Senators who are now standing to block the President's power of appointment! <Mod Edit> You will learn what it means, that Garland was a compromise-pick, when it comes time for Hillary to set Garland aside in favor of a justice that will be able to get through the new Democrat Senate.

The Senate has refused to act on any nomination by the President, on any timeframe. This is Unconstitutional pure and simple, and a rank violation of the Separation of Powers, in the bargain. If you want to get caught up on the state of the arguments, look at the thread http://www.politicalforum.com/polit...senate-refuse-vote-presidents-sc-nominee.html

 

In the short term, I agree. But there is a point where MOST Americans (a plurality) WILL reject the horrible BS coming from the Right. Many are missing the reality that America can't grow/improve with the GOP as it is... but they are proving with each day that is so.

In the long term, the WAY the GOP is will HURT them gloriously.

 

10th Amendment: Any rights not delegated to the Federal Government belong to the States and/or to the people.

I thought Elizabeth Warren was an idiot, and my thoughts on this are unchanged: You have a fundamental misunderstanding of what the Senate is obligated to do. There's no obligation for the Senate to vote to confirm. Since it's not written, it's not assumed to be there. Sorry, you don't get to make your own assumptions. When in doubt, the freedom of the language is held superior. That's always been a SCOTUS ruling on these issues.

But even if the Senate did have an obligation, there is no obligatory timetable(as Troianni points out). If you and Elizabeth Warren dislike the system, you're going to have to change it the legal way. Either via constitutional amendment, or by bringing it to the Docket. So, are you confident enough in your illeligible interpretation to hold it up in Court? Oh wait, they're not. I wonder why.

Whether you like it or not, the GOP can do this as long as they want, and the only one who loses from withdrawing his nominee is Obama.

 

Nullification of the President's appointment power is Unconstitutional. Yes, Republican Senators can choose to break the law, and that is exactly what they are doing.

 

Again...no. As has now been explained to you multiple time by myself and others, the President has the power to nominate, not to appoint. (The proverbial singing pig is coming to mind.)

This is the best response you have?: All of those abuses are direct and on point and all occurred well before and independently from the Senate's current position on Garland. There is no "give and take" when it comes to constitutional rights, including the right to have a non-dictatorial executive. For additional specifics: a) Obama specifically refused to adhere to the WPA before the invasion and afterwards. All of his predecessors have adhered to the law, tho claiming they didn't have to. Moreover, I and others have been making this complaint from Libyan Day One, not (as you claim) after things went bad. (That would be some Democratic projection.)

Once again...again, there was and is plenty of precedent for the Senate to not approve of nominees. In fact, the tactic used to prevent Obama making recess appointments was created and used by the Democrats to "obstruct" Bush, Jr., who respected the Senate's wishes. Also contrary to your foolish claims, a 9-0 ruling in this matter against Obama is rather clear proof of abuse of power.

All I can tell you is that what your really saying is that you have no clue as to how the Constitution works and the separation of powers therein, ample proof that any opinion you may have on a Court nominee should be justly ignored.

 

Arjay, perhaps we should consider the claims by Modus from a different angle. If the Senate has no right to obstruct and stop presidential nominees, that would make all of the Bush, Jr. nominations similarly obstructed by the then Democratic senate unconstitutional. Where feasible, all of the then open positions subsequently filled by Obama would be vacated by court order and refilled by the original Bush nominee. (Note that I don't recall any conservatives claiming that those actions were unconstitutional, nor any of these same Dems screaming today. Funny how that happens.)

 

The president does not have "appointment" power in this instance or he would have appointed instead of nominated. If Obama thought that he could work around the senate, he would have. It is what he does.

 

Funny how it only seems to be a democratic position to benefit themselves and to ignore any similar situation from the opposition.

 

What are you, some Con talking-point parrot? What does the 10th Amendment have to do with anything about the topic of this thread?

You need to read for comprehension. I am not talking about the right of the Senate to reject nominees. I am saying that the Senate has no right to reject the President's unique enumerated power of appointment.

Nope nope nope. The implication of the text is plain as day: The President must make appointments. That means he must nominate, and by implication the Senate must affirmatively respond to the nomination (with an up-or-down vote). Otherwise there is no appointments-process, which is a clear violation of the Constitution.

And your point about the law tells against you: Any lawyer will tell you, Article II Section 2, Clause 2 does not give the Senate the discretion to decide whether to exercise their mandated role to advise and consent. The rules of statutory interpretation require that if the plain language is unambiguous, then you don't get to supplement it with conditions and exceptions which are not included in the statute. Article II Sec. 2 does not say, nor does it imply, that the Senate's "advice and consent" role can mean total inaction. That is a forced interpretation, ginned up by you for political purposes. The secular interpretation of the document is that the Senators are obliged to make a positive response (conventionally with an up-or-down vote). To refuse to do so, is a violation of the Separation of Powers.

True, there is no stated timetable. But the Republican Senators apparently have no confidence in their convictions; they will not even risk trying to draw out the confirmation-process, and run out the clock. "I wonder why."

For the time being, you are getting away with breaking the law. The Supreme Court will have to revisit this issue, after it is restored to full strength. And for the time being, what I am calling for in this thread is the withdrawal of Garland's nomination. Liberals need to prepare to put forward a younger and much more liberal Justice, in the coming Admin.

 

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Go back and READ Article II Sec. 2, please.

 

Sure, each issue has its own set of circumstances and possible solutions. Sometimes the status quo is preferred, but I don't send congressmen to Washington to simply oppose or support the Executive, which is what I've seen happen recently. Congressional campaigns have centered around "Stop Obama," and unless we get our act together, future campaigns will center around "Stop Trump/Clinton." I prefer the parties work with each other.

 

I can agree with all of that; however, that is not the world in which we currently live. Allowing Obama (or any of his successors) to ignore the status quo via fiat will only make matters worse. Sometimes a prevent defense is one's only viable option.

 

Agreed, but certain systems are obviously broken. Immigration needs to be dealt with by Congress. Concessions will need to be made by both sides. Instead, they sit on their hands.

 

I hope Obama nominates a true liberal, rather than a pro-government shill like Garland. It would be better for the Republic to have principled justices (even those who's views I disagree with), than yes men for the government.

http://www.pbs.org/newshour/rundown/garland-submits-questionnaire-as-judiciary-committee-stonewalls/

 

Because each side considers the status quo as better than what the other side is offering. Also, why should one compromise when you know that the opposition won't live up to their side of the agreement? We are currently in an environment where (usually) the Dems and Obama won't enforce duly enacted laws that they don't like and Obama will override such laws and enact new ones at will. Compromise is impossible in such an environment.

 

I have read it, have you?

It does not say what you desire it to say, it is very clear and you are clearly wrong.

 

From Article II Sec. 2: "He shall have power... and he shall nominate, and by and with the consent of the Senate, shall appoint..."

So - what does this passage indicate? Who has the power of appointment? The President. Who has the obligation to make appointments? The President. Both power and obligation - viz., prerogative responsibility - are connoted by the use of the term "shall" in the Constitution, which is used throughout the document with this meaning.

The passage does not indicate that the Senate is likewise deputized with the power to make appointments. That power belongs to the President alone. What the Senate has, is veto-power on a(ny) given particular nominee presented to it by the President. This is the check/balance that the Legislature has on the appointment-power which does not belong to them, but to the President.

The Senate's advice and consent role, then, is the sufficient condition for the discharge of the Presidential power/obligation of making appointments. In this way, though they do not share the power, they are implicated in the exercise of it. As the President is obligated to fulfill vacancies in the named government offices, the Senate must act to facilitate the exercise of the power. This means that they must render a decision (in a timely fashion), approving or rejecting the nominee. If they approve the nominee, the initiative shifts back to the President, who will move to actually appoint. If they reject the nominee, again the initiative shifts back to the President, to find a new nominee acceptable to the Senate. But in either case, the Senate must make a decision, in order to uphold the appointment-process. Refusal to consider a nominee is a rejection of the appointment-process, and in DIRECT contradiction of the logic of the appointment-process as outlined in Article II Sec. 2.

Yes, and that was also Unconstitutional - but Republicans have more than got their redress on this, as under Obama they have blocked more judicial appointments in the nation's history. But while blocking lower-court appointees is a nuisance (while still illegal), the Supreme Court is different. It is totally unprecedented in the nation's history, for a faction that controls the Legislature to outright deny the Executive's unique power of appointing Justices to the Supreme Court. That this is a violation of the Separation of Powers is as plain as DAY. It is not only illegal, but it is a reckless act setting very dangerous precedent for the future. Not unlike the House's Debt-Ceiling blackmail gambit back in 2013 (also a violation of the Constitution)

You have no clue. You don't know how to read the Constitution, you're just another hack partisan singing the praises of the Constitution all day long - until the moment it becomes inconvenient.

 

You can't break something that isn't stated. Even in the definition of a "living document", it must be implied. And it's never implied. So why don't we revisit that piece of text, shall we?

"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."

It's pretty plain and clear what it says. It says he shall "nominate" and "by and with the advice and consent of the Senate." This advice and consent can honestly take up any form. If it's the Senate's position that they won't confirm the appointee, that's "advice and consent". You can't say otherwise, no matter how much you'd want to.

Equally, as mentioned: There's no timetable. So, there's really nothing here that says they MUST give advice and consent. There's nothing that says they must vote. You really want me to bring it down on you? There's nothing that says they should be voted on! That's just the "tradition" the Senate chose upon if you will.

Whether you like it or not: Section II is vague, and it's that vagueness that allowed the GOP to take this position.

 

Fish meets barrel: Its says right there, "shall nominate". The nomination does not elevate to an appointment until if and when the Senate consents. Nominations and appointments are related but materially different things. This really isn't rocket science and no, zero, nada court would interpret this language as you have (so I won't bother picking apart the remainder). Now I can often be sympathetic to challenging interpretations by the Court, but this one is rather straightforward.

I will again reiterate my offer to go with your position tho, if and only if, all positions that a) were open at the beginning of Obama's first term in office, b) were subsequently filled, and c) were blocked from being filled with a Bush nomination be (where feasible) 1) immediately vacated and 2) filled by the previously blocked Bush nomination. Deal? Didn't think so.

 

It's simply false to claim that advice and consent can "take any form." The whole purpose of Article Sec. II is for making appointments. The verbal nouns "advice" and "consent" do not connote acts of omission: the text does not say, nor can it reasonably be read as saying, that the Senate can "delay," defer," "withhold," or "abstain from" consent. If the Senate could do these things, it would run directly counter to the purpose of Article II Sec. 2, and just because of this we should expect that the drafters of the document would have made it explicit. But they did not. And why would they make it explicit, that this was disallowed - I'm sure it did not enter their minds that the Section would be interpreted in such a way as to undermine its own stated purpose.

Anyway, by the conventions of statutory interpretation, and by the very logic of the appointments-process, your claims are pure B.S. Again: Article II Section 2, Clause 2 does not give the Senate the discretion to decide whether to exercise their mandated role to advise and consent, in the first place.The rules of statutory interpretation require that if the plain language is unambiguous, then you don't get to supplement it with conditions and exceptions which are not included in the statute. Article II Sec. 2 does not say, nor does it imply, that the Senate's "advice and consent" role can mean total inaction. That is a forced interpretation, ginned up by you for political purposes. The secular interpretation of the document is that the Senators are obliged to make a positive response (conventionally with an up-or-down vote). To refuse to do so, is a violation of the Separation of Powers.

The same logic of the appointments-process applies to the Senate, as it does to the President. The President has the power to nominate, and to finally appoint named officers of the U.S. government. But this is not only a prerogative of the President. It is a prerogative obligation. What the Senate is doing is the same as if the President refused to nominate anyone in the first place - if, for example, the President decided to hold out for a more compatible Congress after an upcoming mid-term election. If Obama did that to you on a Supreme Court replacement, you'd be screaming bloody murder and going on and on about its Unconstitutionality. But this stunt that the Republican Senate is pulling is equivalent to that.

Again, though the Senate itself has no power of appointment, the President can only make appointments contingent on the consent of the Senate. The President is required by the Constitution to make standard appointments; therefore, the Senate is prohibited from interfering with or nullifying with this power. This means that the form of the consent that the Senate gives, cannot function to nullify the President's enumerated power. But this is exactly what ignoring a nominee tout court does: it blocks not merely a nominee, but the entire appointments-process. The natural check/balance that the Constitution provides for the Legislature on the Executive's appointments, comes in their ability to reject particular candidates, To make a blanket-rejection of the President's nominees (this is what you are doing) both violates the President's enumerated power, and violates the Separation of Powers by imposing on the Judicial Branch.

Sorry, but you can't claim that the text is ambiguous, when the "interpretation" that favors you politically, expressly contradicts the purposes of the document and the logical implications of its provisions. Try making that claim in a court of law and you'd be laughed out of the place.

First, you are confusing the timetable for consent, with whether or not the nominee is acknowledged by the Senate. There can only be a timetable, if the nominee is acknowledged (there can be no timetable for a non-existent nominee). So, I'm willing to grant that there's no formal timetable, but that's contingent on the Republicans taking up the case of a nominee Obama presents to them. Furthermore however, by the 14th Amendment principle of due process (i.e., by the principle 'justice delayed is justice denied'), the Senate could not string out hearings indefinitely. To do so (for example, granting the Obama's nominee hearings but waiting until after the election to vote to confirm or reject), it could be argued in court is a violation of the law.

Section II is not explicit; that is not the same as saying that it is vague. For your claim to hold any legal muster, the text must explicitly give the Senate the power to block the President's appointment-power. Obviously, it doesn't - but since you have no answer to my developed argument interpreting the document on this matter, all you can do is pitifully repeat yourself. You are operating with a simple cynical political motive here, transparent to anyone. And you are abetting the violation of the fundamental law of the United States.