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In reply to the discussion: They did not confirm Merrick Garland because they KNEW the fix was in [View all]Fla Dem
(24,300 posts)The real reason President Obama wont recess-appoint Merrick Garland to the Supreme Court
By Jonathan H. Adler December 29, 2016
Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obamas nomination of Merrick Garland to the Supreme Court. Some sued (making borderline frivolous claims). Others argued that Obama could simply appoint Garland without Senate consent. The problem, in both cases, is that the Senate has no constitutional obligation to consider a presidents nominees. While prior Senates largely used this power to withhold consent for lower court or executive branch nominees (leaving some judicial nominees in limbo even longer than Garland), there is no constitutional reason to treat a Supreme Court nomination differently.
Since the election, some are advancing a new strategy to place Garland on the high court: a recess appointment. This idea was floated by David Dayen in New Republic in November and endorsed this week in New York magazine by Ed Kilgore. The problem with this idea, however, is that it is clearly precluded by Supreme Court precedent and, even were this not the case, would be entirely fruitless (although not for the reasons Dayen and Kilgore suggest).
Some progressive activists and commentators are understandably frustrated that the Senate refused to consider President Obamas nomination of Merrick Garland to the Supreme Court. Some sued (making borderline frivolous claims). Others argued that Obama could simply appoint Garland without Senate consent. The problem, in both cases, is that the Senate has no constitutional obligation to consider a presidents nominees. While prior Senates largely used this power to withhold consent for lower court or executive branch nominees (leaving some judicial nominees in limbo even longer than Garland), there is no constitutional reason to treat a Supreme Court nomination differently.
Snip>>>>
Since the election, some are advancing a new strategy to place Garland on the high court: a recess appointment. This idea was floated by David Dayen in New Republic in November and endorsed this week in New York magazine by Ed Kilgore. The problem with this idea, however, is that it is clearly precluded by Supreme Court precedent and, even were this not the case, would be entirely fruitless (although not for the reasons Dayen and Kilgore suggest).
Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garlands appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garlands term would end. This is because, under the Constitutions Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a presidents signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.
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https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/29/the-real-reason-president-obama-wont-recess-appoint-merrick-garland-to-the-supreme-court/?utm_term=.a5725e5d140a
Much more complicated and complex than one would think. Three dimensional chess as they say.
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