How the SCOTUS battle could escalate in 2017

[Landslide Lyndon]

This is a fascinating read. I'm waiting for Ernest's opinion on that.

http://www.politico.com/magazine/story/2016/03/the-supreme-court-the-nightmare-scenario-213776

At some point, someone in the White House counsel’s office will notice that the Constitution doesn’t actually say that the Senate needs to vote to confirm a judicial nominee. The Constitution says that appointments shall be made “with the advice and consent” of the Senate. Traditionally, we have thought that the Senate’s “consent” is signaled by an affirmative vote. But voting on the nominee is just a convention—a shared understanding among the players in the game that we do things a certain way.

This is where the fragility of conventions comes into play. Just as there’s no rule that the Senate needs to consider the nominee quickly, there’s no clear reason why the Senate’s consent to a nomination must be signaled with an affirmative vote.

In many areas of the law, silence signifies consent. One could perfectly well read the Constitution to mean that the Senate has consented to a nominee if it remains silent for some reasonable period of time—in fact, it might make a lot of sense to read the consent requirement that way. If the president nominates Merrick Garland and the Senate finds him objectionable, the Senate can say so. And if the Senate doesn’t bother to do anything and some reasonable period of time elapses, you could argue that implies that the Senate has no objection strong enough to prevent the nominee from taking office.

...

So imagine this script. Conscious of the apparent radicalism of deeming a Supreme Court nominee appointed without an affirmative Senate vote, President Hillary Clinton approaches the project incrementally. On January 20, 2017, she nominates a Deputy Secretary of Agriculture, and three weeks later, when the Senate has done nothing, President Clinton mentions at a press briefing that if ninety days go by from the date of nomination and the Senate still hasn’t acted, she will take that to mean that the Senate has no objection and has consented to the appointment. The Agriculture nominee will move in to the Deputy’s office, start signing letters as “Deputy Secretary,” and so on. Nobody will stand in the way, because the Department of Agriculture will be run by Democratic appointees.

Then, the next week, the President nominates someone to be a judge on a federal judicial circuit that already has a majority of Democratic-appointed judges, as well as a Democratic appointee as chief judge. We go through the same steps, and 90 days later, the judicial appointee is sworn in with all the customary ceremony, puts on a black robe, and starts deciding cases. Republicans cry foul, but the courthouse personnel go along—remember, the relevant circuit is already controlled by Democratic appointees—and there is no process for removing the person who is now acting, and being treated like, a federal judge. (Impeachment won’t work, because the Senate won’t muster a two-thirds majority to remove someone whom it couldn’t be bothered to block by simple majority vote.) And then, with the precedents established, the president makes the fateful announcement: Ninety days more, and I’m going to start calling Merrick Garland “Justice.”

[Joe Republic]

By this same logic, a presidential (or gubernatorial) 'pocket veto' could be viewed as approving the bill into law.

[Attorney General & PPT Dwarven Dragon]

^^ Except the constitution specifically explains when the president ignoring a bill means consent and when it doesn't. There's no such rule about the Senate ignoring a nomination.

[True Federalist (진정한 연방 주의자)]

The presence of the two-thirds requirement for advice and consent on treaties pretty much indicates a requirement that Senate have actively established its consent. That said, the procedure for doing so is up to the Senate to decide by rule and need not even be by a majority

[Attorney General & PPT Dwarven Dragon]

The presence of the two-thirds requirement for advice and consent on treaties pretty much indicates a requirement that Senate have actively established its consent. That said, the procedure for doing so is up to the Senate to decide by rule and need not even be by a majority

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Interesting that it uses 'present' rather than 'in existence'. Has anyone ever tried to ram a treaty through by only letting a certain number of Senators have knowledge of a given ratification session, leaving the rest unaware of what is going on, as a political manuever? - with this scenario, a treaty could be approved with barely any votes.

A similar technique could be tried here.

[Kaine for Senate '18]

Read this earlier today. I just don't see how it's feasible, given 200+ years of tradition.

[Attorney General & PPT Dwarven Dragon]

Honestly, odds are Republicans will have to live up to their pledge of "allowing the next president to decide, whoever that may be", if they want to do well in 2018. If they can win on that message in 2016, then simply find another excuse in 2017, there's a high risk of backfire in the midterms. Especially since the main response to the lame duck question or the "What if Hillary nominates Elizabeth Warren (or similar)?" has essentially been -  "If the people elect Hillary Clinton, they get her pick."

[Gass3268]

It would be up to the Supreme Court to decide wouldn't it?

[Ebsy]

The presence of the two-thirds requirement for advice and consent on treaties pretty much indicates a requirement that Senate have actively established its consent. That said, the procedure for doing so is up to the Senate to decide by rule and need not even be by a majority

You must be logged in to read this quote.

Interesting that it uses 'present' rather than 'in existence'. Has anyone ever tried to ram a treaty through by only letting a certain number of Senators have knowledge of a given ratification session, leaving the rest unaware of what is going on, as a political manuever? - with this scenario, a treaty could be approved with barely any votes.

A similar technique could be tried here.

I believe the rules of the Senate would prevent this from occurring, but the Constitution might not necessarily prevent this from happening if the rules of the Senate were changed.

On the topic at hand, it could work.

[Stranger in a strange land]

On a related note: if Garland still hasn't been given an up or down vote by Jan. 20, 2017 (which he probably won't be), will Republicans continue to refuse to consider his nomination on the basis that it was made by Obama in the final year of his 2nd term, or will they drop this silly charade?

[Amenhotep Bakari-Sellers]

Nuclear Option applies to every Executive & Judicial Appt, so the only tool left, is filibuster non reconciliation budget  legislative items like immigration reform. Schumer dont have to abide by McConnell any longer.

[Landslide Lyndon]

Now a second lawyer advises Obama to follow the same route.

https://www.washingtonpost.com/opinions/obama-can-appoint-merrick-garland-to-the-supreme-court-if-the-senate-does-nothing/2016/04/08/4a696700-fcf1-11e5-886f-a037dba38301_story.html

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.

...

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.

[Slander and/or Libel]

I still feel like this strategy is too cute by half. Whatever the consent of the Senate is, it seems ridiculous on its face that the Senate wouldn't be able to determine whether or not it had given it. That's not to say that I support what the Senate's doing right now, but I don't think there's a cute way around it.

[ag]

If this were not to end in an impeachment trial, I would be shocked.

[Orser67]

I certainly understand people looking for ways around the Senate. But I strongly oppose upending 200 years of constitutional understanding. I also think this would be a political loser, a la the court-packing plan.

[Slander and/or Libel]

I certainly understand people looking for ways around the Senate. But I strongly oppose upending 200 years of constitutional understanding. I also think this would be a political loser, a la the court-packing plan.

Yes, this is dumb and could come back to bite them as soon as 2019-20.  If Justice Ginsburg had just died under President Romney and a Democratic senate, I think most people on this forum would be encouraging the senate to do almost exactly what it's doing now.  And if not to reject any Romney nominee, period, then to only accept a known pro-choice, anti-money = speech nominee.  Garland is a fine guy, but he clearly isn't the reverse of that.  Obama should have offered someone clearly right of Kennedy if he wanted to fill this seat before the election.

No, that is a crazy idea. He shouldn't have to give in and nominate someone clearly to the right of Kennedy. He's still the President, and he still has some prerogative in the matter. The obstruction here is unprecedented.