Can POTUS Sue Congress when they clearly neglect their duties?

[GusFring]

Serious question. Everyone acknowledges that they're neglecting their constitutional duties by not even voting on Garland, but what options does the President have?

[jberryhill]

1. They do not have a duty to vote on Garland

[GusFring]

3. Biden seemed to suggest they do.

[jberryhill]

6. Tough

He can suggest what he wants.

All the Constitution says is "advice and consent". The Senate doesn't consent. End of story.

[Warpy]

8. Then they need to vote that way

Sorry but having some reprehensible tortoise sit on his thumbs and refuse to allow the whole Senate to do anything is not in the constitution, either.

[desmiller]

10. In my book, that's called treason.

[Doctor Who]

14. Your book is wrong.

Not even close.

[desmiller]

15. Using powers to undermine and disrespect the POTUS is treason to me.

My book's right in that case. Oh, I just found a quote in my page that's always accurate - not even you can deny this one.

It says and I quote: *clears throat*

















"Welcome to my naughty list."

[Doctor Who]

46. Disrespecting the POTUS is treason?

Are you sure that's where you want to set the bar for treason?

[Yo_Mama]

19. You are entitled to your opinion, but the law is what matters.

You don't have the law on your side. Not even remotely.

[desmiller]

22. No law can stop Karma. Those GOP pricks will get their's in due time.

[Yo_Mama]

23. Elections. That they fear. n/t

[desmiller]

24. Yes.

[cloudythescribbler]

77. If only it were so -- due time for the GOP was more than 20 years ago

It seems to me that an already lousy Reaganite party (the repukes) triggered their entitlement to negative Karma when they systematically blocked (overly, in my view) moderate Bill Clinton's every little mild reform with a solid wall of filibusters. This unprecedented (at that time) systematic filibuster made a mockery of the Constitutional scheme and the Democrats then as since only play nerfball with those to their right. Bringing a nerfball to a gunfight resulted not in the cataclysmic losses in 94 that they had richly earned, but control of both Houses of Congress for the first time in 40 years. This was not out of popular enthusiasm for the tactic as (a) disgust by Democrats with the nothing happening and failure to respond a la Truman and (b) the radical shift rightward in the electorate that typically takes place in non-presidential year Congressional elections.

There was also the government shutdowns, the ridiculous investigations, the impeachment, and so on and so forth -- with the Democrats responding weakly as always. David Brock, who many fellow Bernie supporters are castigating as he now runs interference for Hillary in the primary campaign, quite courageously came out in "Blinded By The Right" and showed how things were from the inside, including the insane almost directionless -- presaging Trumpism -- vein-popping anger at Clinton. There is much said that Obama is being uniquely disrespected because of his race, which surely is not without some truth, but really the idiocy of the GOP during the last 7+ years is only a continuation and modest amplification of what they did and completely got away with in the 90s (not to overlook stealing the 2000 presidential election).

Under Obama the story is all-too-familiar, now with the senate refusing even to hold hearings for an ultra-moderate nominee and the rise of Donald Trump. The Karma is WAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAY overdue, and even if Trump gets buried in a landslide, weakened further by some sort of breakaway rightwing "conservative" candidacy, the GOP will still hold a 'majority' (gerrymandority) in the House. So much for Karma.

The planet will be down the tubes, with climate change, already past the tipping point as Jim Hansen notes, passing the point of no return before the GOP get the comeuppance they have so richly deserved for so long.

Meanwhile authentic progressives in the US put up with varying degrees of negative treatment, up to and including assassination, maiming, torture, attainder and much more (as well as lesser crap), and that doesn't seem likely to end anytime soon either.

Karma? I think not!

[jberryhill]

13. The Constitution prescribes no mechanism for "advice and consent"

Anything the Senate does is by its own rules and tradition.

The Constitution does not require a hearing, and it does not require a vote.

The Senate leadership is saying "no" and not moving it to the floor for a vote.

The notion that a federal judge would order the Senate to hold a vote is absurd.

[lagomorph777]

28. They are neither advising nor consenting. They are fraudulently collecting paychecks

and can therefore be sued or arrested.

[jberryhill]

30. In the Court of Imagination, anything is possible

In the real world, not so much.

But I love the DU contingent who always seems to find a reason why politicians should be jailed for one thing or another.

[lagomorph777]

32. Thank you, nice to be loved

[jberryhill]

35. Well, all those lawyers filing lawsuits on this must have another view of it

Oh, wait.

[pintobean]

31. "nor consenting"

There ya go.

[tabasco]

33. NEWSFLASH: The Constitution requires that there be a Supreme Court.

No action by the Senate = no Supreme Court. The Senate absolutely has a duty to act on Supreme Court nominations.

The founders probably didn't have in mind imbeciles like modern-day republicans or they would have included a time limit for action on nominations. It's sad to see people repeating the idiotic republican assertion that the senate has "no constitutional duty" to act on Supreme Court nominations. Ignorance on display.

[jberryhill]

34. NEWSFLASH: There is one

Perhaps you might enlighten me as to the number of justices the Constitution requires there to be on the court.

The Senate does not consent. It's that simple. 1/3 of them are up for election every two years.

The Constitutional system is based on what amounts to a three way power struggle. No court is going to tell the Senate what to do. It's just not set up that way.

You can say they have a moral duty, you can say they have an ethical duty, you can say they have a duty established by tradition, but at the end of the day, they do not have to consent to a nominee.

[tabasco]

37. NEWSFLASH: There would not be one but for senate action that is REQUIRED under the constitution

Hence, the constitutional DUTY of the senate to act on nominees.

Federal law requires nine justices. I suppose the senate can just ignore that, as well, in your la-la land contrarian world.

[jberryhill]

38. "in your la-la land contrarian world"

The fact that the maximum capacity of justices is nine, does not require there to be nine justices. As you might notice, in my "la-la contrarian world", the Supreme Court is currently functioning, issuing decisions, and not saying, "oh, we can't hear cases or issue decisions because we don't have nine."

The federal law in question sets six as a quorum for doing business which, in my "la-la contrarian world", may be news to you.

You'll also notice, in my "la-la contrarian world", there is nobody bringing or suggesting such a lawsuit as you imagine to be possible.

The notion that, hypothetically, the Senate continues to refuse to consent to nominations would, in time, empty the bench, is certainly an interesting hypothetical. Courts don't deal in hypotheticals, they deal in actual circumstances before them.

And, so, let's press on with this notion of a single federal judge telling the Senate how to conduct business. What, specifically, is it that you imagine the judge could order them to do? And, if they don't do it, exactly who do you want that judge to lock up for contempt? All of them? Selected ones of them?

[X_Digger]

51. Did someone misplace the SCOTUS? Should we have their pictures printed on milk cartons?

Free clue: we still have a SCOTUS.

Federal law does not require the senate to confirm any particular nominee, just to maintain nine justices. If that were the case, there would be no 'consent', would there?

[onenote]

74. There actually was a two year period when there was no Supreme Court

See post 73.

[onenote]

81. So do you think that the Senate is obligated to approve anyone the President nominate?

Because the thing that you seem to fear, a Supreme Court with no justices, could also arise if the President keeps putting forward nominees that are voted on but don't obtain a majority of votes for confirmation.

The answer to that circumstance is the same as the answer to the current situation: the political process.

[Yo_Mama]

18. Back when a Democratic Senate was refusing to vote on Bush appointees,

Biden was not so concerned:
https://en.wikipedia.org/wiki/George_W._Bush_judicial_appointment_controversies

People have short memories:

Yale law professor Bruce Ackerman wrote an article in the February 2001 edition of the magazine The American Prospect that encouraged the use of the filibuster to stop Bush from placing any nominee on the Supreme Court during his first term.[3] In addition, law professors Cass Sunstein (University of Chicago) and Laurence Tribe (Harvard), along with Marcia Greenberger of the National Women's Law Center, counseled Senate Democrats in April 2001 "to scrutinize judicial nominees more closely than ever." Specifically, they said, "there was no obligation to confirm someone just because they are scholarly or erudite." [4]

On May 9, 2001, President Bush announced his first eleven court of appeals nominees in a special White House ceremony.[5] This initial group of nominees included Roger Gregory, a Clinton recess-appointed judge to the Fourth Circuit, as a peace offering to Senate Democrats. There was, however, immediate concern expressed by Senate Democrats and liberal groups like the Alliance for Justice.[6][7] Democratic Senator Charles E. Schumer of New York said that the White House was "trying to create the most ideological bench in the history of the nation."[8]

As a result, from June 2001 to January 2003, when the Senate in the 107th Congress was controlled by the Democrats, many conservative appellate nominees were stalled in the Senate Judiciary Committee and never given hearings or committee votes.[9]

I don't think that tactic worked well for the Dems, and I don't think the Republican-controlled Senate now should refuse to vote on Garland. But nothing could possibly stop them from going through the process slowly and then rejecting him, thus achieving the same result.

[beachbumbob]

2. No

[Agnosticsherbet]

4. No. They are not harming Obama's Executive powers. They are just now giving that up or down vote

that they used to like to talk about.

[SCantiGOP]

5. No

[unblock]

7. this is a political problem, not a legal or constitutional one.

even if congress were sued and even if the 4-4 court could somehow compel a vote, they could just vote down every obama nominee. not much of a victory even if we could get it.

but the reality is that the constitution is clear that it's up to the senate to consent or not, and it's up to the senate to define its own rules and procedures. so from a legal/constitutional standpoint, there's no real challenge.

what there is, is a political problem, and there are valid arguments about tradition and that failing to even consider any nominee for obvious partisan reasons is dangerously dysfunctional and sets a horrible precedent and undermines the credibility of the supreme court.

but there really isn't a valid constitutional complaint. if the senate wants to do something blatantly obnoxious and partisan, that's their choice and we can only hope they pay for it in november.

[no_hypocrisy]

9. Writ of Mandamus

The applicant pleading for the writ of mandamus to be enforced should be able to show that he or she has a legal right to compel the respondent to do or refrain from doing the specific act. The duty sought to be enforced must have two qualities:[2] It must be a duty of public nature and the duty must be imperative and should not be discretionary. Furthermore, mandamus will typically not be granted if adequate relief can be obtained by some other means, such as appeal.

https://en.wikipedia.org/wiki/Mandamus

[WillowTree]

16. Are you suggesting that a writ of mandamus would be a possibility?

If so, under what authority would you think that a president would have a legal right to compel Congress to do anything? What would you say grants this or any other president such a legal right?

[no_hypocrisy]

17. Who was the plaintiff for Marbury v. Madison?

It was Marbury who was promised the commission by John Adams and denied by Thomas Jefferson.

https://en.wikipedia.org/wiki/Marbury_v._Madison

Why not have Merrick B. Garland sue?

[WillowTree]

21. So his petition can be denied as was Marbury's?

And again, can you cite any authority that grants either the President or Judge Garland any legal right to compel Congress to do anything at all?

[no_hypocrisy]

25. I searched online and could find petitions but very few decisions.

My proposal is on the novel side admittedly. The Writ of Mandamus would be the proper cause of action. The question would be who h as the standing to go to court with it: Garland, a member of the Senate, a mere taxpayer?

You raise valid issues which I unfortunately cannot answer, only speculate.

[NYC Liberal]

49. The senate had confirmed his nomination though.

The issue was that he had been nominated, confirmed, then appointed, but his official commission was not delivered.

[jberryhill]

36. That doesn't apply to a legislative body

[PoliticAverse]

11. You assume the courts would find for the President in this matter.

Considering that the Supreme Court recently found for the Senate and against the President 9-0 in a (recess) appointment matter you might want to rethink that. Additionally you might find lots of Democratic senators suddenly joining with the Senate against any such case (guess which side of the recess appointment case Harry Reid supported).

Obama is winning the political battle on this. No need to bring it elsewhere.

[lagomorph777]

29. The court is now deadlocked; the GOP can't expect relief there

- oops, unintended consequence there!

[C_U_L8R]

12. It's up to us

We have an up or down vote on each of them

[Yo_Mama]

20. Straightforwardly - he'd be stupid to do so, and he is not stupid.

The first reason it would be stupid is that the lawsuit has no chance of success. The SC simply is not going to order the Senate to schedule a vote on a Supreme Court nominee. It would be the most egregious violation of the Constitution imaginable.

The second reason is that it would force Dem senators to take the side of Republican senators. The way our government works is that the different branches rather jealously safeguard their individual powers.

The third reason is that right now, the situation is that the President has acted entirely reasonably and responsibly in nominating a candidate who is going to get a strong endorsement from the ABA standing committee and that this Senate majority leader has already suggested would be acceptable, and who was confirmed 97-0 on the lower court nomination. So the "advice" part has clearly been taken, and that leaves the Senate majority in a political pickle with the voters with an election in November.

In the end, it is the voters of the United States who have the power to punish senators for bad performance of their duties - not the Executive and not the Judiciary.

[Trust Buster]

26. In this case, the President doesn't need to sue Congress.

The way forward is right underneath everyone's noses IMO. The Constitution offers the Congress the priviledge of "advice and consent". It is not mandatory. It's a check and balance on the President's nominee. But, the Republicans have willingly abdicated that priviledge. Therefore, the President should petition the Supreme Court to swear in his nominee since the Senate has chosen NOT to provide advice and consent. That's what I would do if I were the President.

[SickOfTheOnePct]

48. Advice and consent is not a privilege

The President can't appoint a justice without advice and consent; he can only nominate.

[Trust Buster]

57. What specifically in the Constitutiion supports your claim that advice and consent

is not a priviledge ?

[SickOfTheOnePct]

86. The text of the Constitution itself

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

He can nominate whomever he chooses, but a nomination is meaningless unless it is followed by an appointment. And an appointment can't be done without "Advice and Consent of the Senate".

If advice and consent were nothing more than a privilege, the President could appoint at will, without any say from the Senate. This obviously isn't the case.

[Trust Buster]

87. The Democrats can do the same using that logic. Then the Court will begin to unravel.

How does that satisfy the definition of co-equal branches of government ?

[SickOfTheOnePct]

88. Sure the Democrats can do the same thing

Eventually voters will choose people, of whichever party, who won't refuse to vote on nominees.

Plus, I would hope that Democrats wouldn't be assholish as Republicans.

[X_Digger]

53. I think you need a refresher in civics. The president only nominates.

Lack of consent is lack of consent, whether a vote happens or not.

[Trust Buster]

56. Where can you support your claim in the Constitution ?

[X_Digger]

58. Hell, the constitution doesn't even define the number of justices.

That's up to the legislature (see various acts that moved the number of justices from 6 to 9 over the years.)

If you ask me to approve, and I refuse to answer, I've not given consent.

Let's not worry about the constitution, perhaps you need a dictionary?

[Trust Buster]

60. Where in the Constitutiion does it claim that consent is mandatory ?

[X_Digger]

61. Are you shitting me? You don't even know the language? Back to Civics 101 with you.

Article II, Section 2, Clause 2.

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.

Do I need to send a dictionary to you, too?

[Trust Buster]

62. I know that but the Senate has abstained from advice and consent.

[X_Digger]

63. The senate has withheld it's consent, you say? So it does not consent?

[Trust Buster]

64. I disagree. They never even started the advise and consent process. They suspended the

Constitution just as they have funding military actions in Iraq and Syria without Senate authorization.

[X_Digger]

65. Okay, I *do* need to send you a dictionary.

If you ask me, 'do you consent to a pillow fight?' and I don't respond, I do not consent.

There's nothing in the constitution that specifies that the senate must have an up or down vote, or even make it out of committee, or even be brought TO the appropriate committee.

It's fucking English, not rocket science.

[Trust Buster]

66. So the Democrats decide that they will do the same to future Republican presidents.

As the current Justices die off, the Supreme Court disappears. Is that what you believe the Founding Fathers intended ?

[X_Digger]

67. Do you consent? *silence*.. that's lack of consent. Fucking duh.

Is it a shitty thing to do? Sure. Is it "suspending the constitution"? Of course not.

What, you think that the senate is obligated to approve whomever the president nominates? That the senate should be a rubber stamp for the president?

Free clue: that's not what the founding fathers intended.

[Trust Buster]

68. You avoided my question. If the Democrats do the same, the Supreme Court is finished.

That is the flaw in your argument. By the way, if you can't be respectful, don't respond.

[X_Digger]

69. You mean like they did in 2002? Gee, we still actually have a SCOTUS, don't we?

When you say silly shit, I'll call it silly shit.

[Trust Buster]

70. Not silly at all. If Republicans refuse to hold hearings for a Democrat's nominee, then

Democrats would be foolish to hold hearings for a Republican nominee. This is why Democrats win the battles but lose the war. Republicans are willing to fight. Guys like you are willing to have our Party run over.

[X_Digger]

71. Argumentum ad absurdum.

You've demonstrated you don't actually know the constitution, you don't appear to understand English, you don't understand how the separation of powers work and the roles of each branch of the government.

Apparently an argumentum ad absurdum is your last refuge.

We're done here.

[Trust Buster]

72. You're the absurd one. You defend the Republicans right to not hold hearings but call the Democrats

future right not to hold hearings absurd. I don't think you understand precedent at all.

[onenote]

80. See post 73.

[lagomorph777]

27. Stop writing their paychecks

Department of Treasury is Executive Branch.

[jberryhill]

39. 27th Amendment

[lagomorph777]

40. Not applicable

The current pay rate applies; they are collecting pay for work not performed. Any other Federal worker would be subject to firing and arrest for fraud.

[jberryhill]

41. "they are collecting pay for work not performed"

...as if it was their job to say "yes".

Their "job" is to do what the people elected them to do. Mitch McConnell has made it pretty clear for years that his job is to oppose everything the president does. The people of Kentucky re-elected him to continue doing that, and he's still doing it. That is the job the relevant electorate HIRED HIM TO DO.


http://www.motherjones.com/mojo/2013/10/why-members-congress-should-still-be-paid-during-shutdown

"But logistics aside, the idea that congressmen should work without pay is based on a faulty, if widely held premise—that congressmen aren't doing their jobs. It's certainly true that Congress as a body isn't functioning properly, but on a district-by-district level, residents are getting what they voted for. People who elected mainstream Democratic senators didn't send them to Washington to defund the Affordable Care Act; people who stocked the House with arch-conservative Republicans in 2010 and 2012 didn't send their representatives to Washington to keep the Affordable Care Act intact. Why should a powerless House Democrat have to rearrange his finances because of John Boehner's intransigence?

If people really disagree with what their congressmen have done, of course, they have the same option a private employer would: Fire them. In 2011, House Republicans threatened to shut down the federal government and risk a default. In 2012, their constituents sent them back to try it again. Right now, they're getting what they paid for."

[lagomorph777]

42. It is their job to "advise."

It is also their job to pass a budget. They are deliberately refusing to do their jobs. That's a firing offense for any job. And for a Federal job, it's also potentially criminal.

And yes, perhaps this time the voters will fire them. Especially if it's shown specifically what each individual congressman or senator has been NOT doing.

[lagomorph777]

43. I apologize, Congressman Berryhill

Didn't mean to threaten your job security. No doubt you are showing up to work every day.

[jberryhill]

44. lol

[madinmaryland]

45. No. The only option is for the voters to oust the senators. Not a lot will

suffer for this as they are in red states. The only question is what exactly "advise and consent" mean? Does it mean the Senate has to take a vote? I assume it means whatever the Senate says it means.

[Seeking Serenity]

47. I love reading the comments from

all of the learned "legal experts" who earned their esteemed law degrees from the "I Just Hate Republicans And That's Enough" School of Law.

Arrest the Senate! Theyre committing treason for having political differences with a Democratic president! The courts should force them to do what I want them to do!

Really good for a chuckle.

[X_Digger]

54. I swear, we need to get a $50 tax credit for a voluntary civic class.

Every five years you can take a two-day civics class. If you pass, you get $50 off your taxable income.

That would put an end to nonsense like expecting the executive branch to make law, or thinking that the bill of rights 'grants' rights, or that congress has to vote on every judicial nominee presented to it.

[Thinkingabout]

52. I would be interested in doing this.

[doc03]

55. The constitution says the President (shall) nominate a candidate

for the SCOTUS. Wouldn't that also mean the Senate (shall) give advise and consent. They are refusing even to give him a hearing.
They can vote against him but they refused to even give him a hearing before they even knew who it was.

[onenote]

75. There is no requirement for a hearing

And this is not the first time in this country's history that a SCOTUS justice hasn't been the subject of a committee "hearing".
http://www.politifact.com/virginia/statements/2016/mar/20/mark-herring/herring-says-all-supreme-court-nominees-back-1875-/

[doc03]

78. What is the point in saying the president shall appoint? What if the committee

just refused to ever have a hearing, eventually their would be no court? If a Democrat gets elected this time we could be down to
5 or 6 if the Republicans still control things?

[onenote]

79. See post 73.

[GreenEyedLefty]

59. I'm sure if it is possible, President Obama would have thought of it. nt

[onenote]

73. No. Constitutional expectations are not the same as constitutional requirements

http://www.democraticunderground.com/10027636790

What I wrote a month ago:


There has been quite a bit of discussion the past couple of days regarding the senate repubs decision to stonewall any SCOTUS nominee put forward by President Obama. Much of the discussion focuses on whether the repubs are violating some Constitutional duty to hold hearings and a vote. Many, including myself, have pointed out that the appointments clause and its history support the conclusion that there is nothing in the Constitution that mandates that the senate to do anything with a Presidential nomination if the majority that controls the Senate chooses not to do anything. There are several examples (almost all from the 19th Century) of SCOTUS nominations not getting an "up or down" vote because the nomination wasn't acted on after being referred to committee or because the nomination was tabled or the subject of a procedural motion or motion to postpone consideration that prevented any action from taking place. In these instances, the nomination technically is still alive, although most of the time the President withdraws the nomination since its clearly not going anywhere. It also is not that rare for other types of Presidential nominations (ambassador, lower court judge, cabinet/subcabinet post) to get stalled out without any consideration (including no hearing) and such nominations are covered by the same appointments clause language as SCOTUS nominations.

The issue is the difference between Constitutional mandates and Constitutional expectations. As it turns out, this was the subject of a lively discussion I was part of more than 30 years ago in my Con Law class (team taught by a pretty high level group of professors that included noted Constitutional Law scholar Herbert Wechlser and future Supreme Court Justice Ruth Bader Ginsburg).

The issue that was presented to us revolved around the creation of the Supreme Court. The Constitution states that "the judicial power of the United States shall be vested in one supreme court, and such inferior courts as Congress may ordain and establish." It also states that the President "shall nominate, and by and with the advice and consent of the Senate, appoint ambassadors, other public ministers and consuls, judges of the supreme court and all other officers of the United States whose appointment is by law required to be made by the President with the advice and consent of the Senate.

What was pointed out to us was that there is nothing in the Constitution that deals with how the Court is to be created, how many justices it will have and various and sundry other matters relating to the Court's operation. It was further pointed out to us that while the Constitution was ratified in June 1788, the first president didn't take office and the first congress did not convene until March 1789 and that first Congress did not pass legislation establishing the number of Justices at six until July 1789 and the first Supreme Court didn't convene until February 1790 -- so the country existed for nearly two years without a Supreme Court.

The questions that we were asked to consider included the following: What if Congress had created a Court with only one justice (such that whenever there was a vacancy there would be no Court)? What if the Congress had not acted to create the Court at all? What if the Congress created the Court but the President refused to nominate anyone. Could the Constitutionality of such actions be challenged? And who would hear the challenge if there was no Court to hear it?

The point of the exercise was to drive home the point that there are Constitutional mandates that can be enforced through legal processes, and there are Constitutional expectations that can only be enforced through the political process. If the first Congress had not created the Court, the answer would have been for the voters to either replace Congress or get an amendment to the Constitution passed that established a mechanism for creating a court and for forcing action to fill vacancies.

That is what we face now: a Senate that is defying Constitutional expectations, but not violating any Constitutional mandate. There can be no legally enforceable mandate for the Senate to take any specific action on a proposed SCOTUS nominee just as there was no legally enforceable mandate for the Congress to set up the Court and bring it into existence together with the President (even though the Constitution mandates that such court is where the judicial power shall be vested).

There is no doubt that a Supreme Court with a full complement of justices is to be preferred over a court with a lengthy vacancy. But the current law governing the Court's operations allows the Court to function with as many as three vacancies (a quorum being specified as six justices).

Ultimately, it will be up the voters, and our ability to convince the voters, to either persuade the Senate to reverse course or to vote out the obstructionists. Its not something that can be addressed through a legal action.

[benpollard]

76. They're refusing to advise or even consider the nominee.

Obama should make the appointment and force a vote. Republicans will have to filibuster Garland to block him.

There is no precedent for this level of obstruction.

[onenote]

82. He's made his appointment.

But constitutionally, his appointment has to be confirmed to become effective. No one remotely qualified to be a Supreme Court justice would claim the right to serve without being confirmed or without a valid recess appointment.

[onenote]

83. I thought we had put this subject to bed weeks ago: but let's review

The Senate has no constitutional duty or obligation to do squat with a nomination. The framers of the Constitution understood this. The written record of the original drafting of the Constitution establishes that the framers considered and rejected an approach under which Presidential nominations would take effect unless the Senate proactively voted to "veto" the nomination within a set period of time. Instead, they adopted the "Massachusetts approach" which was well understood at the time as requiring require affirmative confirmation that could be withheld by either by voting down the nomination or by simply refusing to take it up.


Moreover, the Constitution doesn't set a different standard for confirming Supreme Court justices that it sets for confirming ambassadors, cabinet officials or any of over 1000 other officers of the US that are appointed by the president but must be confirmed by the Senate.

If one really believes there is a constitutional obligation for the Senate to act on a presidential nomination, one has to believe that constitutional violations have occurred repeatedly over the nation's history since it is undeniable that not every nomination that gets made gets a hearing or a vote. And one would further have to believe that the President violates some Constitutional "requirement" if he or she does not offer nominations for every single vacant judgeship, ambassador position and presidential appointment - level cabinet or agency post (and as mentioned there are over 1000 of them) before he or she leaves office. And that's just absurd.

[doc03]

84. So what if another one of the right wingers dies and the court has 4 liberals and

3 conservatives, the Republicans would be screaming for the president to appoint someone. Can't the president just refuse to name a nominee? Since the Senate has no obligation to have a hearing why should the president do anything either?

[onenote]

85. Yes. The President can refuse to nominate anyone

And its then up to the voters to decide what they think of that.

As I explained in Post 73, there is a difference between constitutional obligations and constitutional expectations.

It is expected that the president will fill a vacancy, but since that vacancy exists only because the Congress has enacted legislation declaring that the Court consists of a certain number of justices, it was up to Congress to decide how quickly those vacancies should be filled, if ever. And Congress was silent on that issue when it enacted the legislation setting the number of justices.

Think about it: if there was someone or something that could tell a president when he or she had to act to fill a vacancy on the Supreme Court, then that same someone or something logically could also tell a president WHO he or she had to nominate. Otherwise, the President could simply nominate people who would never be confirmed -- a 5 year old child, for example. Or someone who is in a coma. What then? Can someone tell the president to stop doing that? Yes -- the same someone that can tell the president not to refuse to nominate anyone at all --- the electorate.

Let me give you a couple of examples from history. Justice Thompson died in December 1843. President Tyler nominated John Spencer to fill the vacancy in January 1844, and a couple of weeks later, the Senate rejected the nomination. Tyler then waited a couple of months before nominating Reuben Walworth to fill the vacancy, but that nomination was "tabled" by the Senate in June 1844. Tyler then immediately sent up a new nomination -- John Spencer, the same guy that had been rejected five months earlier. It's not clear what point Tyler was making, since he sent a letter withdrawing Spencer's nomination later the same day and submitting.... Reuben Walworth -- the guy whose nomination had been tabled that same day. Not surprisingly no action was taken on Walworth but that didn't deter Tyler -- he resubmittied Walworth's name a third time six months later, in December 1845, only to withdraw it in February 1845.

Notably, at the time all this was going on, there was a second vacancy on the Court -- Henry Baldwin died in April 1844. Tyler nominated Edward King to fill the vacancy in June and then withdrew it 10 days later. He waited until December 1844, and tried again, sending King's name back to the Senate, but by early February he withdrew King's name a second time and sent up John Read's name. But Read's nomination didn't get any action and Polk was inaugurated as Tyler's successor in March 1845. Polk then did nothing from March until the following December -- 9 months -- before nominating a successor, whose nomination was rejected a month later. Polk then waited another 8 months before making another attempt to fill the vacancy. That attempt, made in August 1846 -- nearly two and one-half years after the vacancy occurred -- was finally successful.

Was there some point at which Tyler should have been ordered to nominate someone other the King or Spencer or Walworth? Was there a point at which Polk should have been ordered to make a nomination faster than 8 or 9 months? Who would decide such a thing and how would it be enforced.

The nation survived the Baldwin/Thompson vacancies and the fiasco that followed. It doesn't mean it was a good thing or something that should be repeated. But its up to the voters to make those decisions, not some one telling the President when or who he/she should nominate.