It is Unconstitutional for the Senate to refuse to vote on the President's SC nominee

Article 2 is explicitly concerned with important decision-making prerogatives of the Executive, to fill Constitutionally named government offices. The purpose of the Article is giving the procedure for making appointments. Hence it's reasonable to assume that the Senate's prerogatives of 'advice and consent' are pursuant to accomplishing this goal. Blocking judgment on a nomination, through a peremptory refusal to vote on ANY nominee, runs precisely contrary to this goal. So, in light of this context it is reasonable to assume that if the Framers had intended that 'advice and consent' include the discretion to ignore the Executive's nominees, they would have rendered this explicitly in the text. They did NOT.

So, it's not just a matter of trying to divine the precise meanings of 'advice and consent.' It's also about the very logic of making appointments, a logic embedded in the text. The Constitution gives the Executive the explicit power - and obligation - to make appointments to the Courts. These appointments are of course a practical necessity for the government to function - particularly in the case of the Supreme Court.

'Advice and consent' is the Senate's veto-power on the President'a nominees. Assent by the Senate is the sufficient condition for the elevation of the nominee. A sufficient condition, in other words, for the performance of a power that the Constitution explicitly states that the Executive has - the power of appointment. As long as the Senate acts positively on the nomination of the President's proposed candidate (i.e., assenting or rejecting the nominee) we don't have a problem.

But when/if the Senate simply refuses to consider a nomination, the whole purpose of the Article 2 is defeated. With his nominee in Limbo, the President is powerless to act to appoint; he cannot nominate someone else while his original nominee is left to dangle. How is this not unconstitutional on its face? It strips a power from the President that the Constitution explicitly says he has; and moreover this is a clear violation of the separation of powers. And all the while, the crucial practical task of filling key government positions goes undone. No reasonable interpretation of the Constitution would say that the Framers were providing for the possibility of this kind of outcome.

 

My interpretation is that the power to appoint an SC justice is a shared power. The Framers did not want the president to be a king whose royal status must be respected. They constructed our government with checks and balances, with a bias towards empowering the People to run their government through their representatives. They even explicitly gave the power of war and peace to the People's representatives, something we tend to forget in this day and age. The president's job is to run the various Departments that are authorized by laws passed by the Congress. His other job is as the "head general" in times of war, while the decision whether or not to wage war belongs to the People through their representatives. The president is not our king.

Now given that it takes two to tango, whose fault is it if the president nominates a judge for the SC that is unacceptable to the Senate? Is that the Senate's fault, or is that the president's fault?

Have you ever given any thought to the fact that it was the People who put those Republicans into the Senate, and that maybe, just maybe, the president ought to respect the People enough to nominate a judge who that more conservative Senate will confirm?

 

Depends on who Obama nominates. If he nominate a middle of the road reasonable judge then the GOP will lose politically at least short term by blocking him. Even so this is a HUGE appointment and even if the GOP takes a short term hit its stilll better for the country overall in the long term to wait it out.

Keep in mind though, what happens if Trump does win and he ends up picking a nominee. Can anyone seriously say with a straight face that that won't be as equally problematic as an Obama nominee?

 

The Constitution merely requires consent of the Senate. No required timeframe, no required hearings, no requirement for consideration, no requirement to vote. The only requirement is consent of the Senate. If that consent never comes, the nominee isn't appointed.

On the other side, the President is required to take advice from the Senate. Their advice seems to be wait until after the election.

 

People tend to forget when they get on their huff and puff bandwagon that no one has even yet been nominated.

 

the difference is that a trump nominee will be a matter of negotiation, not agenda driven hubris. bambam has already shown his unwillingness to compromise on anything and no one expects his sc pick to be anything new. by nominating a moderate he would actually be giving the democrats a win, but i doubt his ego would let him take that into account.

 

All of a sudden we have a Constitution? Suck on it libs, elections have consequences.

 

I would also like to remind our liberal friends that the Constitution literally required the Senate to put forth a budget every year, something with the Democrats in the Senate did not do for four straight years. Since the Democrats didn't follow the clear guidelines of the Constitution then they have absolutely no right whatsoever to even mention the word "Constitution" because they clearly have nothing but disdain for it.

 

The people also elected Obama, twice. I feel like people, especially conservatives, forget this all to often.
Republicans have said they will block the nomination regardless, they have no respect for process.

I don't normally side with Obama but in this instance the Republicans are at fault. They should have waited until after the nomination and explained why they would not confirm, refusing to do their job beforehand for spite makes them lose any high ground they may have had.

 

Democrats have blocked nominations in the same circumstances, so they also have no respect for "the process". The reality is the Constitution allows this. We've had years with no confirmed nomination before, the country survived.

 

I can't wait to hear who the President will be nominating.

 

No it isn't, and there are centuries of precedent. Was Obama violating the constitution when he attempted to filibuster Alito?

 

I don't recall democrats saying we refuse to confirm before the president has even nominated an individual, if they did then I condem that as well. This isn't football, you don't have to side with your team - defending it irregardless of the facts surrounding the issue. That neither side can condem the poor actions of their own party is why we are in this death spiral...

But I agree, neither side cares about America - they only care about partisan games.

 

I actually agree that it was bad form for the R's to say they wouldn't confirm any Obama nominee. I think Obama should nominate a moderate conservative judge, and the Senate should hold their hearings and vote on the nominee.

 

Look up the so called "Thurmond Rule". While Strom Thurmond was both a Dem and Rep, the unofficial rule has been invoked by Democrats Feinstein and Leahy without mention of nominee.

 

considering his history, it will probably be a disbarred transgender ex-traffic court judge. got to make sure everyone is represented, no matter how unqualified they may be.

 

I was unaware of the unofficial guideline but even this rule only extends out until June or six months prior to the election from my brief reading of it. I hope Obama will nominate a justice that relies more on legal principal than partisan bias, if the nomination is extremist then I would understand non-confirmation.

Maybe both sides can actually work together to strengthen the court, it won't happen but I can hope...

 

I agree, right now all we can get is center of the isle, Clinton could pick Obama in 2017, that would be something.. republicans heads would explode

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Previously it only extended out from June, it's just an adjustment of time frame then.

Obama nominating a non-partisan? Both sides working together? Well I suppose we'd all hope that but it's not going to happen. This President has been divisive from the day he was elected. Less than 3 days after taking office, "I won". http://www.politico.com/story/2009/01/obama-to-gop-i-won-017862 What a turd.

 

Actually you need to read about Robert Bork, and how they (Dems) stated hell no before he was even nominated...An excerpt from Wikipedia about Robert Bork...

 

Again, this isn't football. The other side did it so now it's our turn is a horrible justification for this; the democrats in your example didn't even refuse entirely prior to the nomination, they advised they would refuse if President Ronald Reagan nominated an "ideological extremist". They then turned around and lied about the appointment (further proving my point that neither side cares about the people). This behavior should be shunned by both parties - not just the opposing side.

I'm not an Obama fan but if he is smart he will nominate a moderate or centrist for the position, he can then sit back while the Republicians shoot themselves in the foot, again.

 

I don't think this is what the text says. The power to appoint is a presidential power. Senate confirmation of a nominee is not itself an appointment. Senate action is necessary for facilitating the presidential power; in order for the President's appointment-power to be discharged, the Senate has a constitutional responsibility to affirmatively respond (i.e., with either acceptance or explicit rejection) to the President's nominee. If they do not affirmatively respond, the President's nomination is a dead letter; it is logically indistinguishable either from a) a scenario where the President has not nominated anyone - which is a violation of his constitutional responsibilities or b) a denial in the first place of his unique appointment-powers. In either case, it is unconstitutional and in the case of b), it is also a violation of the Separation of Powers.

There is a clear process, for candidates that are unacceptable to the Senate. They cant take a vote and reject the nominee. If the Senate merely ignores the nomination/the nominee, they are not executing their responsibilities under the Constitution. The text says that in response to a nomination, their role is for "advice and consent." Note that these are verbal nouns and in no way do they connote acts of omission. The text does not say, nor does it imply, that the Senate can "abstain," "defer," "delay," or "withhold" consent. There is a very important logical difference between assenting to a proposition (or assenting to its denial) and withholding judgment on the proposition. As I said in the OP: in light of this context it is reasonable to assume that if the Framers had intended that 'advice and consent' include the discretion to ignore the Executive's nominees, they would have rendered this explicitly in the text. They did NOT.

Look, does the election of a Republican Senate invalidate Obama's election in 2012? Was he elected by the people for 4 years or not? Obviously he was, and by the Constitution the voters have conferred upon him the ordinary powers of the Executive, for the entire term. That includes the appointment-power, which he does not share with the Senate. The Senate's role (conferred, naturally enough, on the Republicans in the 2014 elections) is to act affirmatively on his nominations, assessing them and responding with an up-or-down vote.

The President has no obligation to defer to the Senate's sensibilities, in his choice of nominee. His choice will naturally be influenced by pragmatic considerations, of course. Primary among those considerations now is that the Senate Republicans under McConnell have triggered a Constitutional crisis, by peremptorily announcing that they will not even recognize any individual that the President names. By this action Senate Republicans are breaking faith with the customs of the country re: SC nominations; and the President has no reason whatever to reward this maneuver, by making a conciliatory pick.

 

Why should it be shunned? The best appointment will be when the President and the Senate agree. If that takes years for a lifetime appointment, so be it. It's not like the court system isn't functional.

 

Its not unconstitutional for them to not ho,LD a hearing, delay a hearing or refuse to hold a vote , according to the President who as a senator voted to filibuster a Bush nominee. The same would happen if the shoe was on the other foot. I don't want any candidate to be voted on until a new President is elected as I don't trust Obama to nominate an impartial individual. The Supreme court should be non political IMO

 

Is the behavior of Scrotum-neck and his cohorts in the Senate unconstitutional? No. I don't believe any federal court would rule that way. It is, however, a complete and utter dereliction of their duty as Senators, and I think that it will cost them the White House and control of the Senate in November. Any move the President makes between now and December will only make them look even more asinine than they already do. If they continue to obstruct they look like jackasses. If they cave in and confirm his nominee, they look like weak jackasses. If they lose the White House and Senate in November, followed by a recess appointment before Inauguration Day, they look like weak, foolish and beaten jackasses. The fatal move was made before Scalia's body was even cold. All that remains now is to see what form the execution will take...