SC Justice Scalia Has Died

[Colonel Sanders]

The Constitution (Article II, Section 2) is very clear:

[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.

"The Barrack" can and shall nominate to the Supreme Court, including in his last year. But "the Barrack" can and shall only nominate, not necessarily appoint. The Constitution states that to “appoint” he has to have the actual consent of the Senate...

I wish I had more time to argue this in depth. But what I will say is that a straight reading of the U.S. Constitution tends to skip across the surface of how it is and can be interpreted. For example, the President has the duty to uphold the laws of the nation and the Senate could be seen as purposely preventing him from doing so while at the same time interfering with the judiciary's power to function. Right there you have serious separation of powers issue coupled with seditious conspiracy, which is clearly unlawful.

Just for kicker here's this:

Justice Scalia's first explication of his views concerning the Appointments Clause came in Morrison v. Olson. Scalia expressed his view that the United States Supreme Court's appointments and removal jurisprudence was rooted clearly in separation of powers.181 In his view, because the Constitution gives the “executive Power” to the President, he must be allowed to exercise not only “some of the executive power, but all of the executive power. Justice Scalia excoriated the Court for its analysis that the President had “some” control and that was enough. In his opinion, the Court exaggerated the amount of power the President had...

That's just off the top of my head and with more time can come up with something better.

 

[Arctish]

Adam White examined the debates over the framing and ratification of the Constitution and found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

What about Senate practice when it comes to dealing with Supreme Court nominees?

Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

 

[bilby]

Adam White examined the debates over the framing and ratification of the Constitution and found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

And not just refuse a nomination - but to declare their refusal of ANY nomination, before they even know who they are rejecting. That's seriously three-year-old having a tantrum territory. Do they not care that they look like retarded pre-schoolers; or are they genuinely unaware that that's how they come across when they pull this stupid shit?

 

[beero1000]

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

And not just refuse a nomination - but to declare their refusal of ANY nomination, before they even know who they are rejecting. That's seriously three-year-old having a tantrum territory. Do they not care that they look like retarded pre-schoolers; or are they genuinely unaware that that's how they come across when they pull this stupid shit?

It makes me wonder if refusal to perform their duties is grounds for impeachment...

 

[untermensche]

And not just refuse a nomination - but to declare their refusal of ANY nomination, before they even know who they are rejecting. That's seriously three-year-old having a tantrum territory. Do they not care that they look like retarded pre-schoolers; or are they genuinely unaware that that's how they come across when they pull this stupid shit?

It makes me wonder if refusal to perform their duties is grounds for impeachment...

Of course it is.

But as usual the biggest criminals are not punished.

 

[jonatha]

It makes me wonder if refusal to perform their duties is grounds for impeachment...

Can you impeach a legislator?

ETA - it appears that in the United States members of the House and Senate are not subject to impeachment. Wiki William Blount.

 

[untermensche]

It makes me wonder if refusal to perform their duties is grounds for impeachment...

Can you impeach a legislator?

I don't think it has ever been tested.

But in theory, why not?

From Article II:

The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

Are Legislators "civil Officers"?

I don't think that has been answered.

Why would the framers want legislators immune from impeachment?

 

[jonatha]

Can you impeach a legislator?

I don't think it has ever been tested.

But in theory, why not?

From Article II:

The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

Are Legislators "civil Officers"?

I don't think that has been answered.

You may have missed my update to my original post.

William Blount, a Senator, was impeached by the House in 1797 but the Senate eventually dismissed the charges, concluding that impeachment did not extend to Senators. (The Senate did vote to expel Blount.)

No legislator has been impeached since.

 

[untermensche]

I don't think it has ever been tested.

But in theory, why not?

From Article II:

The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.

Are Legislators "civil Officers"?

I don't think that has been answered.

You may have missed my update to my original post.

William Blount, a Senator, was impeached by the House in 1797 but the Senate eventually dismissed the charges, concluding that impeachment did not extend to Senators. (The Senate did vote to expel Blount.)

No legislator has been impeached since.

Like I said, never tested in the courts.

But it is clearly dereliction of duty to not consider a nominee.

That is their Constitutional duty, these lovers of the Constitution.

 

[Cheerful Charlie]

http://talkingpointsmemo.com/edblog/lol-has-anyone-looked-at-what-schumer-actually-said

[h=1]LOL. Has Anyone Looked at What Schumer Actually Said?[/h]
What Schumer actually said was that Senate Democrats had been hoodwinked by President Bush's first two Supreme Court picks - Roberts and Alito. They'd accepted assurances that they were mainstream conservative judges who would operate with the precedents and decisions of the Rehnquist Court but hadn't. (Certainly, the experience since 2007 has more than ratified this perception.) Schumer said Democrats should try to block any future Bush nominees unless they could prove that they were 'in the mainstream' and would abide by precedent.
Now, where did I get this from?
I actually watched this video from the Christian News Service and posted to youtube by "Tea Party 2". So I assume we can take it as given that it's not creatively edited.

----



So holding up Schuner as a precedent for GOP obstructionism is not what the right is touting this as being. Pure obstructionism. But it was rather a complaint as to what the choice of Bush appointees did when seated as SC justices.
Judicial activism.

 

[untermensche]

If one has eyes one can clearly see that the only strategy the Republicans have had since they assumed control of the Congress is to block EVERYTHING proposed by Obama. They can not defeat his ideas with better ideas. They can merely block his ideas.

There are of course many things Obama can do on his own.

It is no separation of powers if one branch can completely block the activity of another.

So this obstructionism has nothing to do with precedent, nothing to do with Shumer.

It is all these Republicans know how to do.

They are as clever and entertaining as a clogged toilet.

 

[Jimmy Higgins]

Adam White examined the debates over the framing and ratification of the Constitution and found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

It is incredible the lengths the Right is going to make an incredibly ridiculous argument. "Look, it doesn't say if a 'black President nominates a Supreme Court justice that the opposition party has to, in February make a decision as whether to move forward with confirmation'... it just isn't in the Constitution." Republicans have appointed 7 Justices since 1981 (when the politicization really was kicking off with Supreme Court nominations). The Democrats have appointed 4. And the Republicans are now saying "No fair!"

 

[Cobalt]

If the a Republican claims hold any weight - even to them, why would they have confirmed the other two Obama SC appointments?

 

[Jimmy Higgins]

If the a Republican claims hold any weight - even to them, why would they have confirmed the other two Obama SC appointments?

They were replacing liberal Justices.

 

[maxparrish]

http://talkingpointsmemo.com/edblog/lol-has-anyone-looked-at-what-schumer-actually-said

[h=1]LOL. Has Anyone Looked at What Schumer Actually Said?[/h]
What Schumer actually said was that Senate Democrats had been hoodwinked by President Bush's first two Supreme Court picks - Roberts and Alito. They weren't "mainstream"... [blah, blah, blah]...

Yes I heard what Schumer actually said. Its a litany of political excuses and pre-texts to to support a pre-emptive rejection of all Bush supreme court nominees for 18 months (rather than 11) - except in most (undefined) extraordinary of circumstances should they entertain a nominee. Even so, a new standard of proof is incumbent on nominations to PROVE they can't possibly be right of center.

“should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.” C. Schumer

What is good for the goose is good for the gander, no matter how many special pleadings the goose gives.

So holding up Schuner as a precedent for GOP obstructionism is not what the right is touting this as being. Pure obstructionism. But it was rather a complaint as to what the choice of Bush appointees did when seated as SC justices.
Judicial activism.

So let's see if this sells as Schumer's call for principled ethics:

- In 2007, Schumer says that no Bush nominee should be confirmed (barring "the most extraordinary of circumstances").

- In 2016 Schumer says that a threat to not confirm any Obama nominee is “obstructionism” and an abnegation of duty.

This is comedy gold.

 

[Tom Sawyer]

So let's see if this sells as Schumer's call for principled ethics:

- In 2007, Schumer says that no Bush nominee should be confirmed (barring "the most extraordinary of circumstances").

- In 2016 Schumer says that a threat to not confirm any Obama nominee is “obstructionism” and an abnegation of duty.

This is comedy gold.

Well ya, it's not like the Dems are somehow less hypocritical and partisan than the Republicans. It's just that they have a far better story to sell during the current election campaign about the partisan obstructionism on the part of the GOP than the GOP has about the partisan lack of a year long delay in doing one's job on the part of the Dems.

Clearly, everyone involved would be saying and doing the exact opposite thing if they found themselves on the opposite side of the matter, which is why it's not difficult to find quotes from them saying and doing the exact opposite thing at a time when they were on the opposite side of the matter. However, they're not on the opposite sides of the matter right now and the current situation plays far better for the Dems than it does for the GOP.

 

[maxparrish]

Adam White examined the debates over the framing and ratification of the Constitution and found “no indication of any expectation that the Senate would be required the vote on a President’s nominees.”

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

Because your comment is a straw man. There is no need to justify the manner in which the Senate refuses to give consent - whether or not they actually vote on the nominee, block through filibuster, pressure the executive into withdrawing the nomination, or just fail to act.

However, because many of you can't seem to shake the notion that there is a constitutional duty to vote, the fact that historically many nominees fail to advance through various mechanisms of non-consent should disabuse you of that myth.

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

The Constitution certainly does not set out a timeframe for duties that (in Constitutional terms) do not exist; the President has an affirmative duty to nominate, the Senate has no affirmative duty to act on the nomination. Timeframes have nothing to do with it.

Scalia was a textualist - even you can't invent an anti-textual position he did not hold.

 

[maxparrish]

So, Senate practice when it comes to dealing with Supreme Court nominees has been to confirm 77% of them, to reject 7% of them, and to see the other 16% withdraw at some point during the nomination process, and this justifies the Senate refusing to even consider a nomination because....?

The Constitution may not set out a timeframe for the completion of certain tasks, but I doubt even Scalia could find support for the argument that the Constitution allows Senators to refuse to perform their official duties.

It is incredible the lengths the Right is going to make an incredibly ridiculous argument. "Look, it doesn't say if a 'black President nominates a Supreme Court justice that the opposition party has to, in February make a decision as whether to move forward with confirmation'... it just isn't in the Constitution." Republicans have appointed 7 Justices since 1981 (when the politicization really was kicking off with Supreme Court nominations). The Democrats have appointed 4. And the Republicans are now saying "No fair!"

If the issue were how to make a system to 'balance' the court, or give an equal number of opportunities to select nominees in spite of who is elected, you have a point. BUT in this controversy, that is not the issue.

Moreover, liberals-progressives are not losing a position on the court; they are just outraged that many on the right want to frustrate their efforts to replace a conservative with a liberal-progressive.

 

[Jimmy Higgins]

So let's see if this sells as Schumer's call for principled ethics:

- In 2007, Schumer says that no Bush nominee should be confirmed (barring "the most extraordinary of circumstances").

- In 2016 Schumer says that a threat to not confirm any Obama nominee is “obstructionism” and an abnegation of duty.

This is comedy gold.

The Democrats are just as bad at obstructionism because of a hypothetical Judicial Nominee block. Please ignore the record number of cloture failures and slip vetoes for Obama and Clinton, and the relatively unhindered approval for W.

 

[Trausti]

Well ya, it's not like the Dems are somehow less hypocritical and partisan than the Republicans. It's just that they have a far better story to sell during the current election campaign about the partisan obstructionism on the part of the GOP than the GOP has about the partisan lack of a year long delay in doing one's job on the part of the Dems.

Don't know why people think this will matter in the November election. How many people can name the justices on the Supreme Court now? How many people can name even one? Or their representative in the House? Or one of their two federal senators? Or their state governor? The only people who care are already highly partisan, one way or the other. Is anyone suggesting that if the GOP magnanimously accepts and approves Obama's nomination that the vulnerable senate Republicans up for election would fair better? Would you vote for the GOP candidate then? The senate Republicans can pull a Schumer and the general public won't give a fudge.