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"Separation of powers is where you flatly refuse to do anything until you have both powers and they aren't separate anymore" -the Constitution
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Feb 23, 2016 21:11
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Just to be clear, my personal view is that Obama should just nominate someone and let the Senate make fools of itself. I'm putting up arguments here to interfere with an echo chamber of people who think that elections are being ignored or that the president is being prevented from nominating someone. That simply isn't true.Arsenic Lupin posted:Article II of the Constitution, section 2. Obama's being advised that he'll have trouble getting consent. The senate doesn't owe him their consent. Radish posted:Saying that you won't even consider any of a president's nominations regardless of quality because you hope to win an election after he's gone in a year is an interesting way of interpreting "separation of powers." It's as if there is an intentional tension between the branches of government. Thwomp posted:No, it's one branch doing it's constitutionally guaranteed bit and the other branch refusing to do its part. I doubt even the Senate Democrats want to attend doomed hearings. Especially when they can be out campaigning.
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Feb 23, 2016 21:12
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Also, anyone who thinks they are just going to confirm any of President Hillary Clinton's nominees if the Dems don't win back the senate is delusional.
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Feb 23, 2016 21:13
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Arsenic Lupin posted:Article II of the Constitution, section 2. They advised him not to nominate anyone because they know he wouldn't pick someone who could earn their consent. Sounds legit to me, what's the problem?
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Feb 23, 2016 21:15
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patentmagus posted:Just to be clear, my personal view is that Obama should just nominate someone and let the Senate make fools of itself. I'm putting up arguments here to interfere with an echo chamber of people who think that elections are being ignored or that the president is being prevented from nominating someone. That simply isn't true. So, you're simply ignoring the fact that McConnell has said, twice to make sure he's not misunderstood, there will be no hearings. Not that they would vote down a nominee. Not that they would "advise" the president in a particular way, but that they are refusing to do their constitutional duty because of bare partisan politics. They aren't withholding consent, they're refusing to consider the issue at all. And, anyone who says both sides would do it have a paucity of evidence to back that up. Biden's quote, and Schumer's quotes have both been paraphrased to such an extent as to change the meaning of what they said.
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Feb 23, 2016 21:16
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patentmagus posted:Just to be clear, my personal view is that Obama should just nominate someone and let the Senate make fools of itself. Nobody wants to be nominated just to be shot down pro forma, which would also take them out of the nomination pool when "real" nominations happened in Nov/Jan.
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Feb 23, 2016 21:16
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Drogue Chronicle posted:They advised him not to nominate anyone because they know he wouldn't pick someone who could earn their consent. Sounds legit to me, what's the problem? Then let them publicly state why they specifically dislike any of his nominees and not just make a blanket statement that every nominee he puts forward won't earn their consent.
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Feb 23, 2016 21:17
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Subjunctive posted:Nobody wants to be nominated just to be shot down pro forma, which would also take them out of the nomination pool when "real" nominations happened in Nov/Jan. I disagree. Getting nominated means that Hillary and the rest of the Democrats are going to be running on what a great nominee you are and how could Republicans deny you a vote. I don't see how they then turn around and nominate someone else.
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Feb 23, 2016 21:21
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evilweasel posted:I disagree. Getting nominated means that Hillary and the rest of the Democrats are going to be running on what a great nominee you are and how could Republicans deny you a vote. I don't see how they then turn around and nominate someone else. True, but the nominee better be keestering Xanax given the election year floodlights..
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Feb 23, 2016 21:26
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evilweasel posted:I disagree. Getting nominated means that Hillary and the rest of the Democrats are going to be running on what a great nominee you are and how could Republicans deny you a vote. I don't see how they then turn around and nominate someone else. Because if they get voted down the Republicans can't accept them later without admitting that they were unreasonable in a big way. It would look like they were backing down to an unacceptable degree.
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Feb 23, 2016 21:27
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If there are no hearings, is there some parliamentary procedure where the Democrats can force a procedural vote on considering the nomination? Even though it won't pass, it would be nice to get all the obstructionists on record.
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Feb 23, 2016 21:35
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patentmagus posted:Just to be clear, my personal view is that Obama should just nominate someone and let the Senate make fools of itself. I'm putting up arguments here to interfere with an echo chamber of people who think that elections are being ignored or that the president is being prevented from nominating someone. That simply isn't true. If McConnell didn't want Obama nominating a Scalia replacement, he should've done a better job convincing the American public to elect Romney. quote:Obama's being advised that he'll have trouble getting consent. The senate doesn't owe him their consent. quote:I doubt even the Senate Democrats want to attend doomed hearings. Especially when they can be out campaigning. Debatable as it gives Dems plenty of ammunition to use against Republicans in November. Not that all that many members of the Judicial committee are up for re-election this year. Edit: Konstantin posted:If there are no hearings, is there some parliamentary procedure where the Democrats can force a procedural vote on considering the nomination? Even though it won't pass, it would be nice to get all the obstructionists on record. There used to be a way to make recess appointments but now the Senate never goes into official recess so it's not possible.
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Feb 23, 2016 21:38
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I get that the pedantic argument is that the same country that elected a President to appoint SCOTUS justices is also electing the Senate in order to reject out of hand any appointments the President might make so when they cancel each other out that is what the people are saying they want. I think the obvious reality is that the government was designed with some sort of assumed good faith and not to just shut down entirely if it worked out that two different parties controlled the legislative and executive branches. The country has been able to confirm justices just fine for over two hundred years many of those in a similar situation as we have now without needing one side to totally shut out the other so saying this is the system working as intended is probably not correct even though technically it is true that the Constitution allows for it to happen.
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Feb 23, 2016 21:48
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I don't think anyone is disagreeing that it's a blatantly political dick move that breaks with tradition, but I'm not seeing a) a specific, enforceable Constitutional imperative for the Senate to do anything or b) a real electoral downside to them blocking a nominee from even getting a vote. The nuances of SCOTUS appointment procedures, like the difference between blocking or allowing a nomination on the committee level vs. proceeding to a full Senate vote, are probably lost on most voters.
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Feb 23, 2016 21:49
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If they want to rules lawyer the Constitution so that "advice and consent" means "not even consider" then they should own it. People are objecting to their phrasing that the public needs to have a say in this when they have and that is actively trying to subvert the fact that he was elected to a four year term to do very specific things.
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Feb 23, 2016 21:52
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Yes, the next president is no more or less legitimate than the current one. Claiming that they are unequal is dangerous.
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Feb 23, 2016 21:53
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It's not even optional, by the strictest reading. Article II says that the POTUS shall nominate Justices, not that it's merely within his authority to do so. The executive is obliged to fill SCOTUS vacancies as a duty of the office, and the members of the judiciary committee are leveraging the Senate's ability to advise the President and consent to his choice in a ridiculous, overreaching way.
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Feb 23, 2016 21:54
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Squizzle posted:It's not even optional, by the strictest reading. Article II says that the POTUS shall nominate Justices, not that it's merely within his authority to do so. The executive is obliged to fill SCOTUS vacancies as a duty of the office, and the members of the judiciary committee are leveraging the Senate's ability to advise the President and consent to his choice in a ridiculous, overreaching way. From my understanding (totally not a constitutional scholar) the idea of 'advise and consent' was a compromise between those who wanted power concentrated in a strong executive and those who wanted a weaker executive with heavy checks on power given to congress. So this is (arguably) working as intended, even if it's probably in a way that the framers hadn't though of. On the other hand, I'm pretty sure that they didn't foresee a situation where partisan politics would make the whole system grind to a halt entirely. I wonder what it would take to get people to admit that this is a design flaw in the constitution. If it's not holding out one year for the next president, what if a democrat gets in and they want to hold out for 4 more? What if we get another two-term democrat and have to wait 8 years? What if another justice passes away or retires? What about two? Three? There's nothing in the constitution which says that the senate absolutely has to do anything in any of these situations, but if we get to the point where the supreme court can't even reach a quorum and the senate is still sitting on their hands, would everyone be ready to agree that there are some exploitable problems with the constitution as written?
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Feb 23, 2016 22:05
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It's great that they explicitly want to wait until after the election, because a one-vote margin hasn't ever settled an issue with the election of the President before! Christ, on the off-chance the Supremes had to hear a case on this election, and they broke 4-4, what happens after that? I guess the Congress could enact legislation declaring, as a point of written law, the answer to whatever question deadlocked the Court—but that law would immediately get challenged, and face the Supremes. If they go 4-4 again, that's a legit constitutional crisis with no clear resolution, right? (I know that the real answer is that Roberts brandishes a revolver until everyone signs on to a unanimous opinion, but hypothetically, what happens?)
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Feb 23, 2016 22:15
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https://twitter.com/frankthorpNBC/status/702206741199466496 It's official and in writing. All the Republicans on the Senate Judicial Committee will refuse hold hearings on any nominee. Most have also ruled out even meeting with a nominee. The kicker: quote:"Because our decision is based on constitutional principle and born of a necessity to protest the will of the American people, this Committee will not hold hearings on any Supreme Court nominee until after our next President is sworn in on January 20, 2017." Emphasis mine. Fuckers.
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Feb 23, 2016 22:16
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I guess the thing I'm wondering is, how does this current situation result in a new justice short of a constitutional amendment or the same party eventually controlling the Senate and presidency? I think we've gone past the point of being able to shame congressional republicans into doing the right thing. I'm still not convinced that the GOP's stated reasons for being obstructionists vs. their actual reasons will have much of an effect on election results one way or another.
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Feb 23, 2016 22:16
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BobTheJanitor posted:On the other hand, I'm pretty sure that they didn't foresee a situation where partisan politics would make the whole system grind to a halt entirely. Back in the day they could duel on the whitehouse lawn. Sounds like great pay-per-view.
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Feb 23, 2016 22:17
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SousaphoneColossus posted:I don't think anyone is disagreeing that it's a blatantly political dick move that breaks with tradition, but I'm not seeing a) a specific, enforceable Constitutional imperative for the Senate to do anything or b) a real electoral downside to them blocking a nominee from even getting a vote. The nuances of SCOTUS appointment procedures, like the difference between blocking or allowing a nomination on the committee level vs. proceeding to a full Senate vote, are probably lost on most voters. 200 plus years of tradition is a constitutional imperative.
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Feb 23, 2016 22:19
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Also the separation or power or balance is that the president has to pick someone the Senate will consent to. Not that the senate can veto the entire operation.
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Feb 23, 2016 22:22
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Squizzle posted:Christ, on the off-chance the Supremes had to hear a case on this election, and they broke 4-4, what happens after that? I guess the Congress could enact legislation declaring, as a point of written law, the answer to whatever question deadlocked the Court—but that law would immediately get challenged, and face the Supremes. If they go 4-4 again, that's a legit constitutional crisis with no clear resolution, right? I'd assume the lower court ruling would stand like most pending cases will if tied at 4-4. If no candidate has a plurality of electoral votes, then it goes to the House for a vote, per the 12th Amendment.
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Feb 23, 2016 22:22
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Squizzle posted:It's great that they explicitly want to wait until after the election, because a one-vote margin hasn't ever settled an issue with the election of the President before! Supreme Court wouldn't have original jurisdiction, which means that some lower court issued an opinion. That court's opinion controls.
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Feb 23, 2016 22:25
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euphronius posted:Also the separation or power or balance is that the president has to pick someone the Senate will consent to. Not that the senate can veto the entire operation. Right, I get that in theory, but in practice, what will happen? 1. Democratic president nominates someone 2. Republican judiciary committee refuses to hold any hearing, and the Senate won't hold any kind of vote, but refuses to adjourn to prevent a recess appointment. 3. ??? 4. Democratic president's nominee is appointed to SCOTUS. What happens in step 3?
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Feb 23, 2016 22:27
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SousaphoneColossus posted:Right, I get that in theory, but in practice, what will happen? If the nominee was blocked for the entire 2 years, there is an automatic recess when the midterm happens that cannot be avoided (when the old congress is gaveled out and the new one is gaveled in), and Presidents have appointed people in this recess before despite it being a handful of seconds. I expect that at this point they'd recess appoint someone, but that doesn't end the ongoing constitutional crisis. The crux of the matter is that the Constitution has a lot of holes that have been patched up by tradition and those traditions are essentially dead.
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Feb 23, 2016 22:28
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SousaphoneColossus posted:Right, I get that in theory, but in practice, what will happen? This is a major crisis and something dramatic would happen at 2.
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Feb 23, 2016 22:29
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I think something like the senate democrats stopping the senate would be a justifiable retaliation and would cause a crisis. The republicans are idiotic tho. They should just agree to confirm a moderate older nominee and move on.
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Feb 23, 2016 22:31
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Could a president theoretically keep recess-appointing the same person every 2 years in the recess between congresses?
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Feb 23, 2016 22:33
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euphronius posted:I think something like the senate democrats stopping the senate would be a justifiable retaliation and would cause a crisis. Republican nominees have been so far to the right that a moderate appointee is essentially indistinguishable from a liberal appointee for the next few years (if not more).
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Feb 23, 2016 22:33
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SousaphoneColossus posted:Could a president theoretically keep recess-appointing the same person every 2 years in the recess between congresses? I believe there's a law that a recess appointee doesn't get a salary if it's their second or more recess appointment.
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Feb 23, 2016 22:35
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We need a new SCOTUS thread. This one has turned civil and insightful.
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Feb 23, 2016 22:40
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I wonder about a hypothetical where the left wing with or without Kenedy, perhaps even Roberts writes a letter to Senate Republicans essentially saying that this is bullshit, that the president has a duty and a responsibility to appoint a successor during his time in office and the Senate has a duty and responsibility to hold a hearing, then you end up with a situation where two branches and a fair chunk of the third is telling Senate Republicans to knock this obstructionist bullshit off and Republicans have to decide if they want to look like obstructionist bullies going into the election or just try and quickly confirm and try and sweep this under the rug.
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Feb 23, 2016 22:44
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Three Olives posted:I wonder about a hypothetical where the left wing with or without Kenedy, perhaps even Roberts writes a letter to Senate Republicans essentially saying that this is bullshit, that the president has a duty and a responsibility to appoint a successor during his time in office and the Senate has a duty and responsibility to hold a hearing, then you end up with a situation where two branches and a fair chunk of the third is telling Senate Republicans to knock this obstructionist bullshit off and Republicans have to decide if they want to look like obstructionist bullies going into the election or just try and quickly confirm and try and sweep this under the rug. Roberts would be much more likely than Kennedy as he routinely issues statements requesting that the Senate confirm more judges because there's too many vacancies.
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Feb 23, 2016 22:46
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Three Olives posted:I wonder about a hypothetical where the left wing with or without Kenedy, perhaps even Roberts writes a letter to Senate Republicans essentially saying that this is bullshit, that the president has a duty and a responsibility to appoint a successor during his time in office and the Senate has a duty and responsibility to hold a hearing, then you end up with a situation where two branches and a fair chunk of the third is telling Senate Republicans to knock this obstructionist bullshit off and Republicans have to decide if they want to look like obstructionist bullies going into the election or just try and quickly confirm and try and sweep this under the rug. I doubt that a SC justice would write such a letter in his capacity as a justice. There would have to be a legal and constitutional basis for asserting those duties and responsibilities exist. The closest I can see is that the president -shall- nominate. But whose to enforce that? The senate?
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Feb 23, 2016 22:49
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Also Republicans would be wise to remember that it is very conceivable that Hillary takes the White House and Democrats take the Senate leading to a much more liberal appointment than Obama is likely to try and get past through the current Senate.
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Feb 23, 2016 22:50
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Three Olives posted:I wonder about a hypothetical where the left wing with or without Kenedy, perhaps even Roberts writes a letter to Senate Republicans essentially saying that this is bullshit, that the president has a duty and a responsibility to appoint a successor during his time in office and the Senate has a duty and responsibility to hold a hearing, then you end up with a situation where two branches and a fair chunk of the third is telling Senate Republicans to knock this obstructionist bullshit off and Republicans have to decide if they want to look like obstructionist bullies going into the election or just try and quickly confirm and try and sweep this under the rug. Justices would never formally do that as they are barred from advisory opinions but maybe informally.
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Feb 23, 2016 23:00
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Three Olives posted:Also Republicans would be wise to remember that it is very conceivable that Hillary takes the White House and Democrats take the Senate leading to a much more liberal appointment than Obama is likely to try and get past through the current Senate. Justice Kshama Sawant has a nice ring to it.
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Feb 23, 2016 23:07
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