44 has the power to seat Garland w/out senate approval - he should use it

[dherd]

The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

https://www.washingtonpost.com/opin...696700-fcf1-11e5-886f-a037dba38301_story.html

 

[wisemaniac]

Why wouldn't they just take 90 days & then reject the nominee? Three nominees later they'll get their new President.

 

[dherd]

you miss the point. the point being that they could in which case they would not be waiving consent.

this is the point:
the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.

https://www.washingtonpost.com/opin...696700-fcf1-11e5-886f-a037dba38301_story.html

 

[-Olen-]

you miss the point. the point being that they could in which case they would not be waiving consent.

this is the point:
the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?

In most respects, the meaning of the “Advice and Consent” clause is obvious. The Senate can always grant or withhold consent by voting on the nominee. The narrower question, starkly presented by the Garland nomination, is what to make of things when the Senate simply fails to perform its constitutional duty.

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

Presumably the Senate would then bring suit challenging the appointment. This should not be viewed as a constitutional crisis but rather as a healthy dispute between the president and the Senate about the meaning of the Constitution. This kind of thing has happened before. In 1932, the Supreme Court ruled that the Senate did not have the power to rescind a confirmation vote after the nominee had already taken office. More recently, the court determined that recess appointments by the president were no longer proper because the Senate no longer took recesses.

It would break the logjam in our system to have this dispute decided by the Supreme Court (presumably with Garland recusing himself). We could restore a sensible system of government if it were accepted that the Senate has an obligation to act on nominations in a reasonable period of time. The threat that the president could proceed with an appointment if the Senate failed to do so would force the Senate to do its job — providing its advice and consent on a timely basis so that our government can function.

https://www.washingtonpost.com/opin...696700-fcf1-11e5-886f-a037dba38301_story.html

The lawyer who wrote the op-ed gets an "A" for creativity and an "F" for history and statutory interpretation. Not unusual for the liberal side of the legal/academic/political divide. Here is why this is an "F":

First, an alternative to the "advice and consent" of the Senate was proposed and rejected, the proposal placed the burden on the Senate to actively block the President's nomination within a designated window of time, with the failure to successfully block the nomination resulting in "confirmation" and appointment of the nominee. This is essentially what the author is advocating. This type of proposal was rejected, and instead, the Constitution requires the President to gain the advice and consent of the Senate - meaning that it is the President's burden to persuade the Senate that the nominee is proper under all criteria, including political. The President's failure to persuade may result in no vote (see Lyndon Johnson's nomination of Abe Fortas as CJ of the Supreme Court in 1968) or may result in a failed vote (see Ronald Reagan's nominations of Robert Bork followed by Michael Ginsburg in 1987).

Second, given the independent natures of the executive and legislative branches, and the independence of the two houses of the legislature, the Senate gets to decide its own rules for parliamentary procedure - not the executive. The author's proposal that the President can magically create a deadline for a yes/no vote by ink and signature is the executive usurping the independence of the legislative (and the Senate specifically), a clearly unconstitutional abrogation of power. This isn't a negotiation between private parties where one can place deadlines and constraints on a proposed deal; this is the interaction between the executive and legislative as governed by the Constitution, a document that does not give the executive such powers.

Third, the language of the clause in question is: "and he [the President] 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[.]" Directly addressing the author's nonsensical assertion that the President has the power to nominate AND appoint, the author tries to side step the requirement of Senatorial consent. Failure to get Senatorial consent forestalls the President's power to appoint. If the President does not receive the consent of the Senate, either because of no-vote, filibuster, anti-cloture vote, or rejection of the nominee in the final vote, then the President can withdraw the nomination and select another nominee - or the office can remain vacant until a President can appropriately identify a candidate capable of securing Senatorial consent.

Fourth, suggesting that a Senate "no-vote" is a waiver of its obligation or duty to vote on a Presidential nominee puts the cart before the horse. Namely, the Senate does not have an OBLIGATION to give any Presidential nominee an up or down vote. That is the check-and-balance built into the representative republic form of government that the (now often invoked-by-liberals) "founders" voted on and formed at the beginning, whereby the legislative branch is not neutered through pro forma rubber-stamping of nominees.

Fifth, even assuming that the Senate has an obligation to vote yes/no, the author's example used to shoe-horn the concept of "Senate waiver" into the Constitution is fallacious at its core. That example -- quoting U.S. v. Olano et al. (1993) -- correctly indicates that failure to assert rights in criminal and civil matters before a tribunal may be forfeited. But this example is a red herring of the worst type. In both criminal and civil matters, cases are placed before judicial tribunals to administer justice between litigants. In criminal matters, the county/state/feds are aligned against an accused criminal; in civil matters, an aggrieved plaintiff(s) is aligned against defendant(s). A case or controversy -- the first prong of establishing a tribunal's jurisdiction -- must exist, and if so, the tribunal is compelled to preside. And according to adopted procedural rules, cases adhere to timetables to ensure that justice is administered in a timely manner.

In contrast, the machinations of government, esp. in a republican form of government with representative legislators checking and balancing the executive branch, is in no sense a case or controversy and does not preside in a judicial tribunal. While it is certainly adversarial (and probably the only characteristic shared between governance and litigation), the process is intentionally deliberative (gridlock is the modern-day term). It is why the Senate was assigned 6-year terms (and in contrast to the House of Rep. and its 2-year terms), as a check against the "democratic" and trend-influenced House of Rep. as well as a stabilizing influence against the executive branch.

Creative? Sure. Constitutional - not a chance.

 

[Walden Pond]

Like these people really dictate anything. We're gonna have God, gays, guns, freaks and abortions no matter what. No stopping any of it.

And Cabela's is not as good as Bass Pro. Their fish tank sucks. Little fish and not as many as Bass Pro. Cabela's loses. And bags full of overpriced food. I don't know what that is, but I saw $7.95 and I was headed for the door.

 

[dherd]

i will not go into all that - let me just make this point. what happens
if the congress passes a law and the president neither signs it or
vetoes it?

we all know that after some period of time 60 or 90 days it becomes law.

this is the same situation in reverse.

 

[-Olen-]

i will not go into all that - let me just make this point. what happens
if the congress passes a law and the president neither signs it or
vetoes it?

we all know that after some period of time 60 or 90 days it becomes law.

this is the same situation in reverse.

No. Not even the same ball park. Try again.

First, the Constitution explicitly provides that a bill not signed and not vetoed will become law in 10 days after presentment to the President (the "Presentment Clause" -- Art. I, Sect. 7, Clause 2). By contrast, the Constitution does NOT explicitly obligate or demand the Senate to vote yes/no on a Presidential nominee, much less explicitly state that as a consequence of inaction/non-action that the President's nominee may then be automatically appointed.

Second, as clearly indicated above -- which probably went unread, so I'll repeat it -- what the author of the op-ed advocates (and what you are trying to argue by analogy) was considered by the Constitutional Convention and rejected. Rather than allow the nomination of a single person in the executive branch (the President) to automatically become an appointment because of inaction/non-action or forcing the Senate to affirmatively reject or block the nomination, instead the Const. Convention delegates imposed the requirement of actual consent from the Senate -- a hedge against executive tyranny. And because the Senate (with non-apportioned representation and designated as the deliberative house of Congress) comprises an assembly of individuals, having deliberated and compromised on the bill(s) presented to the President for signature/veto/inaction, the potential tyranny of one (the executive) at the head of the national government at the expense of the representative of the States (the Senate) and the representatives of the people (the House) is avoided -- one that would have been too familiar in comparison to the monarchy that the colonies fought to break free from via the Revolution.

SMH.

 

[Rock98Dog]

Dherd, throw down your knife and run away from this gun fight before you get hurt on a psychological scarring level.

 

[herdfan429]

Wow talk about getting owned

 

[GreenDuke]

tard, if it were me I'd stop right now. Olen makes you look foolish and he bills by the hour.

 

[-CarlHungus-]

REKT

 

[caliherd]

I always find it funny on this board and others when someone who actually works in a particular field explains something in great detail and people with absolutely zero personal knowledge of the subject will argue with them because of something they have read in a blog. It is just astounding.

 

[dherd]

you guys remind me of the cheerleaders in the movie mash.
take a moment and let those images sink in.

as someone who does not work in the legal profession cali - using your logic
you do not know whether the lawyer who wrote the opinion piece, and who
might i add was a clerk for a supreme court justice, or olen are correct do you?

i'll answer for you - NO YOU DON'T so follow your own advice and stfu about
something you know nothing about, or stop criticizing other people posting
an interesting and thought provoking opinion piece written by someone who
is more qualified than anyone on this board regarding the issue.

 

[herdfan429]

you guys remind me of the cheerleaders in the movie mash.
take a moment and let those images sink in.

as someone who does not work in the legal profession cali - using your logic
you do not know whether the lawyer who wrote the opinion piece, and who
might i add was a clerk for a supreme court justice, or olen are correct do you?

i'll answer for you - NO YOU DON'T so follow your own advice and stfu about
something you know nothing about, or stop criticizing other people posting
an interesting and thought provoking opinion piece written by someone who
is more qualified than anyone on this board regarding the issue.

Oh dtard mad

 

[caliherd]

Dherd you are an idiot olen is an attorney and he clearly laid out in detail why the writer is completely wrong. You are a complete freaking moron that doesn't have a thought in your head that isn't put in there by some radical left wing bull sh@t site that you live on. So here's an original thought for you GFYourself

 

[dherd]

FYourself

finally a subject about which you have expertise.

 

[extragreen]

Yes, because an attorney MUST be correct. Why? Because he has a degree and perhaps a certificate on the wall. No offense to Olen, as he may be absolutely correct, but I've had those people with degrees tell me that the object of a prepositional phrase is the subject of a sentence and then people with degrees amen it. Furthermore this board is more or less a radical right wing site.

 

[Rock98Dog]

Well, seeing how Olen went to the trouble of backing up his position with specific reference, and knowing him, my guess is he didn't just render an opinion, but instead researched the legal feasibility of the position stated in the article and found it very weakly supported.

The article was written to appeal to people just like dherd, those that have no knowledge of the law but hate republicans. It gives them some talking point to grab and throw up to other people who know nothing of the law so they can sound smart and reinforce their held view that the evil republicans are misbehaving.

 

[caliherd]

So to repeat myself for the people on this board who have a clue. Olen an attorney laid out why the individual who wrote the article is wrong and used actual constitutional case law as to why the person is wrong. Yet even with that we have two people who provide no shred of evidence to the contrary to disprove what Olen who once again is an attorney and laid out in plain language a legal argument as to why the author was wrong say that he is wrong. If it wasn't so sad it would be hilarious.

 

[extragreen]

So to repeat myself for the people on this board who have a clue. Olen an attorney laid out why the individual who wrote the article is wrong and used actual constitutional case law as to why the person is wrong. Yet even with that we have two people who provide no shred of evidence to the contrary to disprove what Olen who once again is an attorney and laid out in plain language a legal argument as to why the author was wrong say that he is wrong. If it wasn't so sad it would be hilarious.

What's sad is you can't name the 2 people in this thread who said Olen the Attorney is wrong.

 

[Raoul Duke MU]

As somewhat of a constitutional scholar, I will tell you Olen is absolutely correct.

As a historian and a political scientist, I will say McConnell and the Republicans have lost their damn minds. Just vote. Vote no. There is no requirement to have a good reason to vote no. The way they are doing this sets a dangerous precedent when everyone involved tends to be assholes. Elections matter, suck it up and take your medicine and hold a hearing a vote. If McConnell is truly a worthy majority leader he will whip his boys into line.

From a practicality standpoint, this is just stupid. Let's be real, Hillary will be the next POTUS. Sooner or later pressure will mount or the Dems will retake the Senate. Obama's choice is as moderate as it is going to get, take it.

 

[Rock98Dog]

I agree Raoul. Not a bad nominee and not voting just for the purpose of not voting is not smart. They are trying to use it as a campaign issue to scare (rightfully so, I believe) more conservatives to the ballot box in November, so they will probably keep doing what they are doing until after the election.

 

[-Olen-]

What's sad is you can't name the 2 people in this thread who said Olen the Attorney is wrong.

Reminds me of "Stan the Caddy" from "Seinfeld" - at least in terms of labels (of course, Stan the Caddy provided some disastrous legal advice to Kramer, pushing to have Sue Ellen Mischke try on the bra . . . )

If its okay, can we keep it "Olen" -- "Olen the Attorney" sounds like a (bad) character from a sit-com.

 

[-Olen-]

To further color the discussion, I beat several commentators to the punch - most have pointed out similar defects in (attorney) Diskant's proposal. FWIW, Diskant is a litigator, and usually civil business litigation -- and that explains the "creativity" in his proposal, as litigators tend to get paid for being creative in that way.

I'll break up the responses as multiple posts so that it is not one ginormous post. This is not an attempt to take a victory lap -- the linked publications is a means for illustrating my original responses were based in legal scholarship and are the common understanding of the constitution and as applied in cases that have been litigated.

George Mason University School of Law Professor Ilya Somin, who specializes in teaching and research in constitutional law, offered the following (LINK - not behind a subscriber wall) (excerpts only to try honoring copyright):

Advice and consent is a prerequisite for appointment, not a “constitutional duty” of the Senate.

****

[And] if “shall” does not create a duty to consent, it also does not include a duty to offer “advice,” since the “shall” that might refer to both is exactly the same. If such a duty to hold a vote does exist, it would mean that the Senate has repeatedly violated on the hundreds of occasions when it chose not to hold a vote on the nominations of judges and other presidential appointees covered by the clause (such as ambassadors and consuls, for example).

****

[ ] there is no provision for such waiver of the Senate’s confirmation power in the Constitution. If the Senate refuses to consider a treaty signed by the President or a bill passed by the House, no one would seriously argue that the treaty or bill in question should be deemed a law because the Senate has somehow “waived” its authority. Rather, the treaty or bill remains unenacted unless and until the Senate passes it.

****

Even if the Senate does have some sort of duty to offer “advice” on the nomination, it is not required to do so by holding hearings or taking a vote. The Senate can refuse consent by voting a nomination down, by filibustering it to keep it from coming to a vote (as then-Senator Obama advocated doing with the nomination Justice Samuel Alito), or simply by doing nothing. Indeed, the Senate has, historically, rejected numerous judicial nominations by simply sitting on them indefinitely, including a number of prominent cases involving resistance by Senate Democrats to judicial nominees put forward by President George W. Bush.

****

The Constitution gives the Senate virtually unlimited authority to “determine the rules of its proceedings,” including those for considering judicial nominations. This differentiates the situation from waivers of criminal defendants’ procedural rights (mentioned by Diskant), which must be asserted in the context of legal proceedings controlled by others. When it comes to Senate proceedings, there can be no “failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” There is no tribunal with such authority, other than the Senate itself.

****​

 

[-Olen-]

Fellow law professor (Case Western University School of Law) Jonathan Adler - a constitutional law professor and researcher, writes (LINK - possibly/probably behind subscriber pay-wall):

First, the idea that the Senate has an affirmative duty to act in order to reject or “veto” a nomination does not square with the original understanding of the Appointments Clause. As Adam White has explained, the original understanding of the Founders considered, and ultimately rejected, a proposal to require the Senate to affirmatively reject a nomination in order to prevent a confirmation.

****

Second, consistent practice establishes that the Senate may exercise its power to offer or withhold advice and consent in whatever manner it chooses. Over the course of the nation’s history, the Senate has exercised this power in many different ways, sometimes rejecting nominees outright, but other times filibustering or simply refusing to consider nominees the Senate did not wish to confirm.

****

Law professor Lillian BeVier was nominated to the U.S. Court of Appeals for the Fourth Circuit in October 1991, and the Senate never took any steps to consider her nomination, keeping the seat open until President George H.W. Bush left office. Alas, this is not an isolated example.

****

Third, the argument that the president could act unilaterally to fill a vacancy in response to Senate intransigence is even more aggressive (and outrageous) than the Obama administration’s argument that it could define what constitutes a “recess” triggering the president’s authority to fill vacancies with recess appointments. The Supreme Court rejected this argument 9-0 in Noel Canning v. NLRB, even though this could enable the Senate to keep important vacancies open for extended periods of time. The power to define what constitutes a recess, the court concluded, lies with the Senate. Just as Congress determines what constitutes a recess, it is up to the Senate to determine what constitutes “advice and consent.”​

 

[-Olen-]

As a post-script -- these links (and other published responses emerging / yet to emerge) all make it clear that the political wisdom of refusing to take a vote (in some form) is certainly up for question. I certainly agree with that thought (as also expressed up-thread by Raoul and Rock98) -- I have my own theory(ies) on the motivation that I'll keep to myself. Overall, this is (has been and will continue to remain) a political question and not a true legal question.

 

[extragreen]

If its okay, can we keep it "Olen" -- "Olen the Attorney" sounds like a (bad) character from a sit-com.

Olen the Almighty be OK ?

 

[Walden Pond]

The thing about it is, anybody could find 35 pages of stuff supporting whatever argument they want to make. At the end of the day, it comes down to whatever sounds good when spoken from the pearly teethed airhead reporters.

 

[ohio herd]

you guys remind me of the cheerleaders in the movie mash.
take a moment and let those images sink in.

as someone who does not work in the legal profession cali - using your logic
you do not know whether the lawyer who wrote the opinion piece, and who
might i add was a clerk for a supreme court justice, or olen are correct do you?

i'll answer for you - NO YOU DON'T so follow your own advice and stfu about
something you know nothing about, or stop criticizing other people posting
an interesting and thought provoking opinion piece written by someone who
is more qualified than anyone on this board regarding the issue.

If you had half a brain you would try to disengage from this thread since you have been owned

 

[dherd]

I WAS JUST ABOUT TO POST THAT MYSELF, NOTING TWO THINGS.
1. THE RIGHT WING LAW PROFESSOR IS AT GEORGE MASON LAW SCHOOL.
I POSTED A STORY LAST WEEK POINTING OUT THAT CHARLES KOCH HAD
DONATED $36 MILLION DOLLARS TO THAT VERY LAW SCHOOL ONE OF THE
STIPULATIONS WAS THAT THE SCHOOL BE RENAMED THE ANTONIN SCALIA
LAW SCHOOL, THE CONTRIBUTION ALSO ALLOWED THE KOCKS TO CHOOSE
DEPARTMENT HEADS AND PROFESSORS WHO AGREE WITH THEIR WACKED OUT
JOHN BIRCH SOCIETY VIEWPOINTS AS A MEANS OF INFLUENCING YOU LAW STUDENTS
TO JOIN THE CAUSE. DONATING LARGE SUMS TO HISTORY, LAW, BUSINESS, AND ECONOMICS
SCHOOLS TO BUY SEATS FOR THEIR CHOSEN PROFESSORS AND ADMINISTRATORS FOR
THE PURPOSE OF PROMULGATING JOHN BIRCH VALUES HAS BECOME COMMON WITH THE
KOCKS.
2. WITHOUT DISRESPECTING OLENS OPINION IN ANY WAY I WOULD POINT OUT FOR THE BENEFIT
OF ALL THE "CHEERLEADERS ON HERE (CALI) THAT NONE OF HIS POINTS OF LAW ARE INCLUDED
IN THE G MASON REBUTTAL. THAT DOES NOT MAKE ANY OF THE THREE RIGHT OR WRONG.
I GUESS MOST ON HERE HAVE NEVER NOTICE THAT IN EVERY CASE THERE ARE LAWYERS
ARGUING BOTH SIDES OF THE LAW. THAT IS WHY WE HAVE JUDGES AND A SUPREME COURT -
TO DECIDE THE STRONGER OF THE ARGUMENTS.

3 THE WRITER IN MY FIRST OPINION PIECE WAS MAKING A POINT THAT WE HAVE A PROBLEM.
THE PROBLEM IS THAT WE HAVE A POLITICAL PARTY WHICH REFUSES TO DO ITS WORK.
LETS TAKE THE CURRENT ARGUMENT TO THE EXTREME. WHEN HILLARY CLINTON IS ELECTED
45TH PRESIDENT OF THE UNITED STATES UNDER THE RIGHT WING ARGUMENT WHAT WOULD
PREVENT THE SENATE FROM REFUSING TO TAKE UP ANY OF HER NOMINATIONS. TAKE IT FURTHER
AND MAYBE TWO THREE OR OVER TIME EVEN ALL THE JUSTICES DIE OFF WITH A SENATE STILL REFUSING
TO DO ITS JOB.
ARE WE TO BE LEFT WITHOUT A SUPREME COURT AT ALL. WHAT IT THEY WANT TO TAKE IT TO ALL OTHER
PRESIDENTIAL APPOINTMENTS DEFENSE , STATE ETC. SHOULD WE ALLOW SUCH A FACTION TO TOTALLY
DESTROY THE GOVERNMENTAL STRUCTURE OF THE NATION.
I KNOW THAT IS EXTREME, BUT ON THE OTHER HAND THESE PEOPLE OPENLY AND REGULARLY PROCLAIM
THEIR HATRED OF GOVT.

SO WHAT THE FIRST WRITER WAS DOING WAS TO OFFER A WAY OUT OF THESE SITUATIONS. RIGHT WRONG
GOOD OR BAD IS FOR THE SUPREME COURT TO DECIDE - PROVIDING THERE IS A SUPREME COURT.
.
HERE IS THE G MASON OPION:https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/11/can-president-obama-appoint-merrick-garland-to-the-supreme-court-without-the-consent-of-the-senate/?hpid=hp_no-name_opinion-card-f:homepage/story

 

[herdfan429]

I DONT KNOW WHAT YOURE YELLING ABOUT!!!!!!!!!!!!!!!

LOUD NOISES!!!!!!!!!!!!!!

DTARD LOVES LAMP

 

[-Olen-]

I WAS JUST ABOUT TO POST THAT MYSELF, NOTING TWO THINGS.
1. THE RIGHT WING LAW PROFESSOR IS AT GEORGE MASON LAW SCHOOL.
I POSTED A STORY LAST WEEK POINTING OUT THAT CHARLES KOCH HAD
DONATED $36 MILLION DOLLARS TO THAT VERY LAW SCHOOL ONE OF THE
STIPULATIONS WAS THAT THE SCHOOL BE RENAMED THE ANTONIN SCALIA
LAW SCHOOL, THE CONTRIBUTION ALSO ALLOWED THE KOCKS TO CHOOSE
DEPARTMENT HEADS AND PROFESSORS WHO AGREE WITH THEIR WACKED OUT
JOHN BIRCH SOCIETY VIEWPOINTS AS A MEANS OF INFLUENCING YOU LAW STUDENTS
TO JOIN THE CAUSE. DONATING LARGE SUMS TO HISTORY, LAW, BUSINESS, AND ECONOMICS
SCHOOLS TO BUY SEATS FOR THEIR CHOSEN PROFESSORS AND ADMINISTRATORS FOR
THE PURPOSE OF PROMULGATING JOHN BIRCH VALUES HAS BECOME COMMON WITH THE
KOCKS.
2. WITHOUT DISRESPECTING OLENS OPINION IN ANY WAY I WOULD POINT OUT FOR THE BENEFIT
OF ALL THE "CHEERLEADERS ON HERE (CALI) THAT NONE OF HIS POINTS OF LAW ARE INCLUDED
IN THE G MASON REBUTTAL. THAT DOES NOT MAKE ANY OF THE THREE RIGHT OR WRONG.
I GUESS MOST ON HERE HAVE NEVER NOTICE THAT IN EVERY CASE THERE ARE LAWYERS
ARGUING BOTH SIDES OF THE LAW. THAT IS WHY WE HAVE JUDGES AND A SUPREME COURT -
TO DECIDE THE STRONGER OF THE ARGUMENTS.

3 THE WRITER IN MY FIRST OPINION PIECE WAS MAKING A POINT THAT WE HAVE A PROBLEM.
THE PROBLEM IS THAT WE HAVE A POLITICAL PARTY WHICH REFUSES TO DO ITS WORK.
LETS TAKE THE CURRENT ARGUMENT TO THE EXTREME. WHEN HILLARY CLINTON IS ELECTED
45TH PRESIDENT OF THE UNITED STATES UNDER THE RIGHT WING ARGUMENT WHAT WOULD
PREVENT THE SENATE FROM REFUSING TO TAKE UP ANY OF HER NOMINATIONS. TAKE IT FURTHER
AND MAYBE TWO THREE OR OVER TIME EVEN ALL THE JUSTICES DIE OFF WITH A SENATE STILL REFUSING
TO DO ITS JOB.
ARE WE TO BE LEFT WITHOUT A SUPREME COURT AT ALL. WHAT IT THEY WANT TO TAKE IT TO ALL OTHER
PRESIDENTIAL APPOINTMENTS DEFENSE , STATE ETC. SHOULD WE ALLOW SUCH A FACTION TO TOTALLY
DESTROY THE GOVERNMENTAL STRUCTURE OF THE NATION.
I KNOW THAT IS EXTREME, BUT ON THE OTHER HAND THESE PEOPLE OPENLY AND REGULARLY PROCLAIM
THEIR HATRED OF GOVT.

SO WHAT THE FIRST WRITER WAS DOING WAS TO OFFER A WAY OUT OF THESE SITUATIONS. RIGHT WRONG
GOOD OR BAD IS FOR THE SUPREME COURT TO DECIDE - PROVIDING THERE IS A SUPREME COURT.
.
HERE IS THE G MASON OPION:https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/11/can-president-obama-appoint-merrick-garland-to-the-supreme-court-without-the-consent-of-the-senate/?hpid=hp_no-name_opinion-card-f:homepage/story

I only provided excerpts (a little more than I would have usually excerpted, admittedly) -- but you should go to the links (esp. the one written by Prof. Somin). Prof. Somin's analysis lines up very closely to what I posted in the two responses up-thread. In several passages, one might think I pilfered from the professor -- except I posted my initial responses Saturday before Somin's published today. Moreover, in the links provided, the authors note that even left-wingers legal commentators have taken issue with this idea proposed by attorney Diskart. And for long-standing reasons.

Except for a handful of non-legal types, attorney Diskart's idea does not have any sound basis in (a) statutory interpretation, (b) precedent, or (c) the "legislative history" of the constitution. The constitution demands a separation of powers between the co-equal branches of government; Diskart's proposal obliterates the line between the executive's role and the legislative's role and allows the executive to usurp the legislative's independence. There is no precedent in support of this legal theory (not one instance in the 225 years since the constitution was ratified by the States), and the canon's of statutory interpretation would have to be violated in the extreme to interpret Art. 1, Sect. 7 to support this proposal.

Aligning oneself with this type of radical thinking is fine - bear in mind, the pendulum tends to swing the other way eventually.

 

[-Olen-]

Olen the Almighty be OK ?

YIKES - no thanks.

 

[extragreen]

YIKES - no thanks.

Ya gotta admit, has a nice ring to it.

 

[raleighherdfan]

I only provided excerpts (a little more than I would have usually excerpted, admittedly) -- but you should go to the links (esp. the one written by Prof. Somin). Prof. Somin's analysis lines up very closely to what I posted in the two responses up-thread. In several passages, one might think I pilfered from the professor -- except I posted my initial responses Saturday before Somin's published today. Moreover, in the links provided, the authors note that even left-wingers legal commentators have taken issue with this idea proposed by attorney Diskart. And for long-standing reasons.

Except for a handful of non-legal types, attorney Diskart's idea does not have any sound basis in (a) statutory interpretation, (b) precedent, or (c) the "legislative history" of the constitution. The constitution demands a separation of powers between the co-equal branches of government; Diskart's proposal obliterates the line between the executive's role and the legislative's role and allows the executive to usurp the legislative's independence. There is no precedent in support of this legal theory (not one instance in the 225 years since the constitution was ratified by the States), and the canon's of statutory interpretation would have to be violated in the extreme to interpret Art. 1, Sect. 7 to support this proposal.

Aligning oneself with this type of radical thinking is fine - bear in mind, the pendulum tends to swing the other way eventually.

He has no idea what you are saying now Olen. Besides, none of this over rides dtard's fascination with all things "KOCK".

 

[dherd]

SO, IF THE RADICAL RIGHT CONTINUES THIS STRATEGY INTO & THRU THE
NEXT PRESIDENTIAL TERM INCLUDING 3-4 OR 5 EMPTY SUPREME COURT
SEATS, WHAT IS THE RADICAL RIGHTS SOLUTION. CLEARLY IF THIS NOMINEE IS
UNACCEPTABLE IT IS HARD TO IMAGINE HOW ONE OFFERED UP BY PRESIDENT
CLINTON WOULD RECEIVE A HEARING EITHER. IS YOUR ANSWER TO MERELY
LET MULTIPLE SEATS AND CABINET POSITIONS GO UNFILLED?

YOU MIGHT SAY OH WELL THAT WILL NEVER HAPPEN, BUT JUST A FEW YEARS
AGO WHO WOULD HAVE THOUGHT THE SITUATION WE FIND OURSELVES IN
WHERE A RADICAL BRANCH OF GOVT IS CONTENT TO DESTROY THE SUPREME
COURT.

WHAT IS YOUR SOLUTION.

AS FOR (A) (B) AND (C) I THOUGHT HE COVERED THOSE POINTS VERY WELL.

As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

THERE IS NO PRECEDENT OR HISTORY BECAUSE WE HAVE NEVER BEFORE BEEN CONFRONTED WITH ANARCHISTS
RUNNING THE UNITED STATES SENATE AND HOUSE OF REPRESENTATIVES.

 

[Rock98Dog]

Dherd, I don't remember your thread from 2007 addressing this travesty of process.

http://www.washingtonexaminer.com/s...ny-bush-supreme-court-nominee/article/2583283

 

[herdfan429]

This is no different than a filibuster

 

[-Olen-]

SO, IF THE RADICAL RIGHT CONTINUES THIS STRATEGY INTO & THRU THE
NEXT PRESIDENTIAL TERM INCLUDING 3-4 OR 5 EMPTY SUPREME COURT
SEATS, WHAT IS THE RADICAL RIGHTS SOLUTION. CLEARLY IF THIS NOMINEE IS
UNACCEPTABLE IT IS HARD TO IMAGINE HOW ONE OFFERED UP BY PRESIDENT
CLINTON WOULD RECEIVE A HEARING EITHER. IS YOUR ANSWER TO MERELY
LET MULTIPLE SEATS AND CABINET POSITIONS GO UNFILLED?

YOU MIGHT SAY OH WELL THAT WILL NEVER HAPPEN, BUT JUST A FEW YEARS
AGO WHO WOULD HAVE THOUGHT THE SITUATION WE FIND OURSELVES IN
WHERE A RADICAL BRANCH OF GOVT IS CONTENT TO DESTROY THE SUPREME
COURT.

WHAT IS YOUR SOLUTION.

AS FOR (A) (B) AND (C) I THOUGHT HE COVERED THOSE POINTS VERY WELL.

As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.

THERE IS NO PRECEDENT OR HISTORY BECAUSE WE HAVE NEVER BEFORE BEEN CONFRONTED WITH ANARCHISTS
RUNNING THE UNITED STATES SENATE AND HOUSE OF REPRESENTATIVES.

I find it hilarious you want to label what the Senate is currently doing -- a process that has been utilized by both parties over the course of US history multiple times -- as a concoction of the "radical right" and completely overlook the radical nature of Diskart's idea, which would actually destroy the separation of powers explicitly set forth in the constitution.

It is also the height of hyperbole to label a "non-vote" on this nominee as an attempt to "destroy" the Supreme Court -- there are still 8 justices seated that can hear and decide cases. Lest you forgot (or don't know), the Supreme Court routinely hears less than 90 cases per year - while the function of the Supreme Court is important, and unimpeded by the Senate in its current posture, the inferior federal courts do the grand majority of the heavy lifting on actual cases and controversies (as opposed to a concocted legal dispute that is really a non-justiciable political dispute that Diskart raises).

Moreover, the hypocrisy of the left on this vacancy, when this President has failed to nominate anyone for numerous other positions in the government, is telling. Sooooo -- is the President in violation of his "obligations" to nominate individuals for all these vacant positions? If so - what should be the punishment?

And as I explained -- Diskart did NOT cover anything well, including this non-sense about Senate "waving" its opportunity to advise and consent. Waivers are recognized in criminal and civil actions because of jurisdictional issues, including timeliness of trials and appeals, the speedy and proper administration of justice, and for finality for the parties (and certainty in the results). The interaction between the executive and the legislative (esp. the Senate) is not litigation, is not before a tribunal, and is political (non-legal) process that is not subject to court-centric time windows and deadlines -- in fact, as has been said numerous times in this thread and in other threads regarding this national government, it was designed with the opposite in mind: deliberative action -- which is now bemoaned as gridlock. The national government was given limited powers and was intentionally designed to move slowly in adding to those powers (through legislation) and move even more slowly in up-ending what is in the constitution through the amendment process.

Yet the left wants to usurp the Senate's constitutional prerogative and destroy the separation of powers -- just so they can get their way on a SCOTUS nominee? SMH. Again - the pendulum ultimately swings the other way. Goose - gander. Etc.

 

[extragreen]

"Moreover, the hypocrisy of the left on this vacancy, when this President has failed to nominate anyone for numerous other positions in the government, is telling."

So is the republican obstructionism.
In the history of the United States, there have been 168 filibusters of presidential nominees, 82 filibusters under President Obama, 86 filibusters under all other presidents.