Time for Obama to withdraw Merrick Garland's nomination

Yes, (sigh) the nomination and the appointment are distinct things. They are both integral to the appointments-process. I don't know what clever point you think you're making. The fact remains that only the President can appoint (that only the President can nominate is simply a corollary of this). If you're going to actually try to dispute that, well put up or shut up.

 

Bingo, only the President can nominate, but his nomination is subject to the consent of the Senate, after which only the President can appoint that approved nomination. The Senate can't disapprove and then nominate or approve someone else, nor can the President appoint w/o an affirmative consent.

Perhaps a real life comparison will be of assistance. In his/her Last Will and T, a divorced parent can only nominate (not appoint) a guardian for minor children. Such a nomination has weight, but is not determinative to a court, which has the actual power to appoint. If the surviving parent is fit and wants custody of those minor children, that's who will likely get custody notwithstanding the wishes of the now deceased parent.

 

Wall of text is ineffective. An "authoritative" advise and consent is then neither advise nor is it consent, but a decree. You're saying that the Senate must act this way even though there's no language affirming that it indeed must act this way. The purpose for Article II is not "for making appointments", but how appointments are to be made. If Congress/president agreed to make NO appointments at all, that would not be a violation. For the discretion of decision making lies with the government as a whole.

I think you do however realize, unlike Elizabeth that Article II isn't affirmative, because you jumped to the 14th Amendment. To make the argument that this nominee is being treated differently than any other nominee, and thus being denied justice. This is a better argument than stretching out Article II to mean something that it's not.(An "obligation" on the Senate, when no such forceful language was placed and the Founders were very deliberate in writing, because they knew the beauty of our language. Something you and Elizabeth unfortunately do not.).

But does this interpretation of the 14th hold legal water? In my mind, I'd make the oral argument that it doesn't. It's true, this nominee is indeed being treated differently than other nominees via his hold up. But he's not being treated "unfairly". Nor does he have the "right" to a hearing. He was nominated, but he was not however accepted(obviously).

For the claim that he's being treated unfairly to hold merit, he would have to be granted a hearing and then treated differently than other nominees in the hearing process. Congress as a body must be allowed to make its choices in discretion. Otherwise, all nominees that were accepted guarantee that all nominees are accepted, none are denied.

In short, the 14th defend basic guarantees to the constitution, not a "right to employment"(Federal employment, I should say) and in the context of the voting process, not to be confused with the Civil Rights Act.

If your interpretation of the 14th were to win in a legal battle, it would mean that no one may be denied anything, it would be an extension upon the 14th.. Such an extension, much like your revision of Article II to add compelling language to the Senate Body, should be held for a constitutional amendment.

 

And yet, you respond with wall of text. Not one for irony apparently (no surprise)

I don't know what you're talking about, referring to a "decree" - the Senate is at liberty to reject any particular nominee that the President puts forward. Next.

Standard jurisprudence says that the plain reading of the text is the normative interpretation. The Constitution directs that the the nominee is approved contingent on the Senate's advice and consent. The text says nothing about the Senate having discretion in that matter. Given that the whole purpose of Article II Sec. 2 is for the purpose of making appointments, the burden is on you to show how blocking this process and totally disregarding the nominee counts as "advice" or "consent" pursuant to making appointments. Good luck with that, by the way.

Wrong, on both counts. The language that the text uses to speak of the President's action is "shall." "Shall" is the honorific term used throughout the text of the Constitution, to signal the prerogative duties of the office. And the President in tandem with Congress does not have the prerogative to leave key offices of the Judicial Branch unfilled, as this is a violation of the Separation of Powers. The President could collaborate with Congress to change the size of the Court, but not whether it is staffed according to law. The law today is that the Court must have nine Justices.

Except that the Executive and the Legislature are not "the government as a whole" - didn't think that one through, now did you?

My argument for the Unconstitutionality of refusing the President's nominees a hearing and a vote is supported by - but does not depend on - the 14th Amendment. The argument I'm making is equally valid before the Civil War Amendments were drafted. I realize you have some idee fixe on Warren, but the only time she will come into this discussion, is if she replaces Garland as the President's nominee.

Look, you're begging the question. I just explained, in detail, why the Senate is obligated to give him a hearing. Either you address the argument I've made (the 'wall text' which you apparently didn't read for comprehension), or you cede it.

 

I don't have a dispute with any of that. My whole argument (which I made in detail in the last few posts) is that the President is obligated by the Constitution to make appropriate appointments, and that the Senate has a derived obligation to consider particular nominees for acceptance or rejection. That is the logic of the appointments-process, and that is the law. The Senate has no more discretion to ignore nominees, than the President has to refuse to name candidates to the required offices.

 

Not really. One can't be obligated to do something that one doesn't have sole control over. In the real, practical world, the President could have an obligation to nominate, but if so, how soon? Does the obligation have to met within the hour of vacancy, one week, one year? If the Senate has an obligation to hold hearings, does that obligation kick in within the hour of nomination, one week, one year? Compare with the veto power, does it have to be affirmatively exercised or is the "pocket veto" allowed? In many ways, the Senate not having hearings or holding a vote is essentially the same thing as such a pocket veto.

Even with all of this, any lawsuit attempting to force the President to nominate or the Senate to holding hearings/vote would be dismissed as a political question. With no legal remedy, there is no law. Your sole remedy is political. This is the same as any attempt to force the President to enforce a law. No court is going to order the President to enforce a law (e.g. deportation); however, a court can and should enjoin a President from breaking a law by some affirmative action (e.g. giving out work permits to illegal aliens). Now failing to enforce a law due to disagreement over policy could easily arise to a breach of his oath of office, but again the remedy would be impeachment or the next election cycle.

 

I prefer to refer to what I wrote as an "explanation", you keep repeating your same position which I've already refuted(the irony of politics though, is that one's rebuke is another's denial. This very fact often dissuades my politics, to be honest with you. Hitting my head on the brick wall is not how I value my time.)

I'm not surprised you don't know. You simply didn't pay attention, so allow me to bring it to your attention.

If a body(the Senate) must give its advice or consent, it's no longer doing so willingly. Therefore, we can't look at it like advice or even consent. No, it's neither of these things since it has been stripped of its independence(via your interpretation of this clause). It's a decree

Advice must be freely given, it's not something that should be forced(and if someone is "obligated" to give you advice, you should take it with a grain of salt since they're fulfilling the quota of giving you "advice"). The same thing with consent, consent that's forced, isn't even existent. That's just forced.

The Founders would not agree with your interpretation that the Senate must always give consent or advice. It wasn't written in there, not even hinted at.
And for the record, I can easily make the argument that the Senate has given it's consent and advice. We both know what that is, Mitch McConnell simply didn't say it.

"Our position is that you're such an awful president that ANY nominee you put up, would probably be a bad one. Hence the Judiciary Committee doesn't feel confident in any selection you make."

That's effectively what McConnell is saying, and you and I both know it. At this point, you're probably going to cry out that this is stripping the President of his power. Not at all. If the Senate chose to do so, it could very well vote down all of the nominees and make this same statement.

So, why don't they? To avoid the propaganda that was connected with the Shutdown(Your Democrats were at fault, by the way.) If the Senate were to actively vote down the President's nominees, you'd still cry that he was being denied his power, and that the Republicans were "deliberately leaving a justice seat open", etc.

So the Republicans are effectively doing the same, by not consenting. Which in my opinion is fully within the Senate's authority. It's no less in our authority in sexual intercourse. The same is true for the Senate body. Whether President Obama likes it or not.

Which is why I'm right, and you and I both know it. There's no authoritative statement that says the Senate MUST do anything. The President shall name his appointee, and that's what he did. The Senate doesn't have to do anything. Your only argument against this basic English fact, is that it'd contradict the "meaning" of Article II.

But it doesn't contradict Article II at all. All Article II does, is spell out the proceedings of Presidential Appointments. That's literally all it does. It doesn't guarantee anything, the word "must" is never used. Or any word to the rough equivalent thereof. Like you said: Standardized rulings are bared by plain text.

Either it's there, or it's not. And hell, we both agree that it isn't even "implied". This whole argument, again is from Liberal circles. You guys are the ones wanting to expand Article II beyond its definition, for the purpose of bypassing Republican Obstruction. If you want to expand Article II, I suggest a movement for a Constitutional Amendment.

Or as I said, a court Remedy. But as of now, the language simply doesn't exist. The Senate is not compelled to act, no matter how much you want it to act.

Effectively shown above. Advice and consent cannot be forced. You can't call it "advice" or "consent" without the will of the consenter (In this case, Congress.)

This might be a little obvious to point out, but you can't have a "Separation of Powers" and then suggest that the President and Congress are "in tandem". It simply doesn't work that way. And like I said, I invoke the 10th to counteract your 14th. There simply isn't any wording that prohibits Congress from inaction. If the President doesn't want to fill certain seats, he doesn't have to fill certain seats. If Congress doesn't want to approve of a nominee, they don't have to approve of a nominee. They don't even have to hold a vote.

No, literally. It doesn't say "With 2/3rds of a majority", such as the later clauses in the Constitution regarding other matters. Only authoritative language such as that "2/3rds of a majority" can definitively nail down such manners. Where the Framers didn't use authoritative language, it was intentional. Because they knew issues like this, would come up. Where the House/Senate or both, would not agree with the direction taken.

I would argue that they are, and they were meant to be. Until the Supreme Court became political(officially, with FDR's cronyist placements to secure the New Deal.) But Thomas Jefferson was well aware of the Court's political leanings and therefore usurpation of political representation, which is why he called for the court's abdication. The Court, as it is today is no longer representative of the US, nor does it hold itself strictly to upholding constitutional law. Its independence, now jeopardized calls for the abdication of the Court. A Political State, is far more representative. I don't see the value in the Court.

And honestly, neither do you for example. Whereas I cheer Hobby Lobby, you probably look down on it. Whereas at the same time, the ACA should have never been approved. This is proof of the Court's political existence and violation of its original purpose.

No such fixation, she just simply makes the same inane argument that you did. And hence if I were a Senator and a vote were held, I could never in good conscious vote for someone who has trouble interpreting basic English. Likewise with Hillary nominating someone with no judicial experience(and all the bias in the world in Obama.) That might be the one thing that'd unite moderate Democrats(the few that are left anyway), with the surviving Republican Party members in a flat out NO.

Hillary won't get a dictat to move the Courts further to the Left. The Democrats have lost popularity and are just barely hovering over the Republicans(proof of how bad both of them have performed.) If Hillary really wants to make us "whole" again, she'll choose someone even more to the right of Garland and get this over with.

I hate to appeal to authority(especially when I believe I've made the much stronger argument. We both invoked one Amendment each, along with philosophical interpretations of Article II. I find my interpretation to be more consistent in Plain English. Because I'm not presuming anything. In fact, I'm only logically assuming if its not there, its not there.)

But even though as a philosopher this is a cardinal sin, I'm going to commit it anyway: If in fact the Republicans were violating the law, why don't Democrats take it up in a court of law? As I mentioned before, it's one of only two ways this is going to be resolved(short of Republicans confirming Garland.). We can only presume the reason Democrats don't take it up in a court of law, is because they believe in fact that it's not a violation(public statements be damned). We can also presume that since the Democrats believe this, they want to keep this vagueness in tact for when Democrats can apply this tactic. The Democrats in fact do not want a definitive ruling on this, but simply a Republican capitulation.

 

I think that if Hillary wins the election or looks like pretty much slam dunk 100% she will (also probably guaranteeing a Democrat Senate), Obama should withdraw Garland and let Hillary nominate someone younger and more liberal. It would serve the GOP crazies right. Apparently they have forgotten the first lesson a child should learn - there are consequences for actions.

 

I like this idea, but I would wait until either the republicans start to make conciliatory sounds, or a month before the election. It can still be useful in the general election to attack the obstructionist congress, but yes Obama should withdraw the nomination before November. I no longer want this pick. I want the judicial equivalent of Caesar Chavez. If Berkley has a law School and the guy worked as a union lawyer before becoming an ACLU attorney, that's what we should look for. Oh yeah and he has to have done community service as an advocate for the rights of the homeless for the last twenty years.

 

Har! Good one. I agree. They should get the hammer. They'll seemingly never learn (exhibit #1- Trump) but it will get their attention.

 

They keep accusing every one pick of being a socialist activist judge. I think we should give them a real one to compare the rest with!

 

Again: the Constitution directs the President to make appointments. The President cannot make appointments without the cooperation of the Senate. Thus, by hypothetical syllogism, the Senate must cooperate with the President in the appointments-process. Call it a "decree" if you feel like. That's the logic of the text. If you can refute the logic of the appointments-process, go ahead. Otherwise my interpretation stands.

A couple basic errors in your reasoning, here: First, you're confusing form and content. The President has no choice but to receive the advice and consent of the Senate, in order to make his appointments. The obligation of advice and consent gives the Senate its proper check/balance in the appointments-process. But the Senate cannot refuse their advice and consent tout court, because this vitiates the process itself - which is plainly against the Constitution. If they don't like a candidate that the President nominates, they just call a vote and reject the candidate. No "decree" anywhere to be seen, there.

Second, "advice" and "consent" (as I pointed out in my previous post, but which you have conveniently failed to address) is not language that carries any connotation of action by omission. "Consent" in particular cannot mean, in context, action by omission. If it did, by your logic, the President could simply say, "Well, I didn't hear back from you guys with a 'veto,' so I'm just going to go ahead and appoint this little dude!"

Third, the very meaning of consent entails that some request, solicitation or supplication has been made. But McConnell's strategy is to simply ignore, to refuse to recognize, any and all nominees whatsoever that Obama makes. He cannot give consent when no request has been made. But that is contrary to the facts. A request has been made. So to continue to deny the facts, is to deny not merely a nominee but the President's power of appointment itself. Which is Unconstitutional, period. Sorry, but no matter which way you twist, you are in violation of the law.

Look, I sympathize with you; you have lost the argument, and you are doing your best to shift the burden of proof. Sorry, but again you are the one making the novel claim that the Senate has discretion to do something (abstain from making any decision on nominees), that is stated nowhere in the text. The text states that appointments are made, contingent on Senate approval. The text also directs the President (obligates the President) to make appropriate appointments to various federal offices. The Senate's obligation to affirmatively respond to the President's nominees, is logically derived from the President's obligation. Got an argument against that? Then make it.

Furthermore, you are making the novel claim that the Senate can categorically refuse to recognize the President's nominees, taken as a class (before, indeed, any particular nominee is presented to them). But the according to the text, the President is to appoint "officers" to various positions in the federal government. Officers are individuals, not classes; so per the text, while the Senate has the prerogative of rejecting individual candidates, it cannot categorically reject all the President's nominees as a class (which is the stunt they are trying to pull, right now).

Without the recognition of individual candidates, the Senate obviously cannot give advice or consent - you can't affirm or reject a nonexistent cadidate. But of course they are too cowardly to recognize Garland (or anyone else Obama proposes).

Damn right he didn't say it! After all you can't give advice on a nominee that doesn't exist. And the Senate's position is to pretend that there are no nominees before them - not just Garland, but any nominee. That is their position, made by McConnell before Scalia's body was even cold. It is total Looking-Glass rhetoric, since it contradicts the fact that Obama has since presented them with a nominee. But they can't acknowledge the facts, because then they'd have to proceed to affirmative advice and consent. And they know it.

Man you just don't get it. They could vote down all the nominees; that's their prerogative, that would not be vitiating the appointments-process (and hence the President's enumerated power of appointment). But rejecting the appointments-process - what they are doing if they issue a before the fact blanket-rejection of all possible nominees - is flatly Unconstitutional. You can indulge the Big Lie all day long if you want, but you still lose.

Well, a little bit of honesty! That's a nice change of pace. And you suspect that you will lose that political argument, which is why you're opting instead simply to violate the Constitution.

There doesn't need to be any such 'authoritative statement' - it's entailed by the provisions of Article II.

See, this is all you got. You can't defend your interpretation; all you can do is repeat yourself. You already failed the burden of proof, and now you are failing the burden of rejoinder, and forfeiting the argument.

Article II states the procedures, yes - which are also requirements. In no other way, are appointments going to be made. The standard modal imperative used in the Constitution is 'shall,' rather than "must"; 'shall' is a legal honorific used in the 18th century to connote obligation. It is a more abbreviated version of "it is so ordained, that." Making appointments is an imperative for the President; and whether the Senate likes it or not, they are implicated in the President's exercise of the appointment-power. This is the true meaning of the text, for all your efforts to bob and weave.

Yeah, another specious argument. There cannot be "consent," if no request for consent is recognized. But in truth to claim that there has been no request for consent is manifestly contrary to the facts. All you have to left to defend yourself is to resort to the Big Lie, which you are gamely doing, but it won't work.

Sorry, but neither the Executive nor the Congress, operating singly or in tandem, can impose on the prerogatives of the Judicial Branch without violating the Separation of Powers. It's not rocket science, but the point seems lost on you.

I don't get what it is with you Cons and your 10th Amendment fetish; you wield the 10th like a talisman to ward off anything you remotely don't like. We are talking about, and only about, the Federal government.

Filling key government posts is a necessary function of government; without it operating in an orderly way, the government can cease to work (and in the end will cease to work entirely) - we see this before us right now, with a Supreme Court hobbled in its authority by having only an even number of Justices. We are not talking about the rejection by the Senate of this or that candidate nominated by the President; we are talking about a shutdown of the appointments-process.

The novel interpretation that you are claiming for Article II Sec. 2 - for which you have offered zero argument but only (highly repetitive) assertion - is that the Framers envisioned that the whole purpose of the Section, could be countermanded by the Senate's categorical refusal to provide advice and consent ("advice" and "consent" again not being verbs of omission; they imply affirmative decisionmaking). Prima facie it's a ridiculous claim. It's amusing that you think that the Framers themselves were so stupid as to intend something like this, or that you actually think I am going to buy that argument. I refer you to my refutation of this claim, above.

It's understandable that you feel this way, since conservatives have been losing arguments (at least in civil rights law) at the Court for a few generations now. Though they have done quite well in the area of business law; in general what I see with the Court is long-term trend to uphold the interests of individuals vs. the majority, a general Libertarian trend. You can certainly see that with their loose-interpretation of 2nd Amendment right, a number of years back. But anyway: you don't get your way all the time with the Court, therefore it is illegitimate. Yep, that's Con logic for you.

Another exercise in magical thinking. I have to say the epistemic closure you guys have is impressive. Anyway, what I'm calling for in this thread is the immediate withdrawal of Garland's name, before the Senate Republicans wake up and do a hurry-up confirmation for him. Obama should be nominating a the liberal equivalent of Scalia (to balance the Court; in Scalia we had an ultra-conservative on the Court for years, now it's time for an ultra-liberal). And Hillary will be making that nomination - you can mark it.

Hah, Yeah - just like I said, Irony-challenged.

An official legal rendering has to be made on this, and the sooner the better. God I'd pay cash money to put your arguments and mine before an actual court of law for a ruling. Unfortunately, precisely since the Constitutional Crisis being triggered by the Republicans here bears on the Court itself, it can't be resolved while the Court is not at full-strength. You know, that really should be obvious. But this whole Republican assault on our basic institutions requires an Orwellian determination to avoid facts that are plain-as-DAY.

 

Of course the President can make appointments without the Senate. They just cannot be confirmed without the Senate(See: When Obama violated this precise fact in 2014.). And I hold, that there's nothing in the texture that denies the Senate this privilege. You still haven't pointed to a single phrase or statement that would put McConnell in the wrong. Because it doesn't exist. No matter how much you or any Liberal wants it.

Let me word this as strongly as possible: Even Ginsburg would agree with me that the text in question, does not refer to any "obligation" onto the Senate, at all. If Article II was affirmative, then the present-day political stalemate wouldn't exist. Lawyers, not even conservative lawyers are going to break laws abashedly.(And by the same notion, the Shutdown wasn't against the law. But that's an entirely different legal technicality right there.)

Again, where does it say it would be a violation of the Constitution if the Senate didn't give its advice or consent? You don't even have to invoke your big words, all you're basically saying is "No duh, that's what it's there for." Except, you're wrong. It's more nuanced than that. All Article II is, is spelling out the rules for appointments.

Article II gave the Senate the power of advice/consent, but it did not mandate the usage of this power. Strictly speaking, a vote on an appointee is consent, but it's not advice. When's the last time the Senate formerly advised the President on his judicial pick? Congressional hearings on the nominee do not factor in the POTUS, but the nominee in question.

So for all intents and purposes, the advice part is negated and we're just left with Consent. Is the Senate obligated to give its Consent? To use your own argument against you, an "obligated" Senate would be a violation of the Separation of Powers and would give the President de-facto dictatorship powers over his nominees.

Not quite, going by the rape analogy just because someone didn't say "no" does not mean they said yes. In much the same way, just because Congress did not state its disapproval via a vote, does not mean the president can presume the nominee was accepted. Only the executive branch is limited by the actions(and sometimes non actions) of the legislative branch.

All the executive branch(the President) is charged with, is vetoing or accepting laws, appointing its nominees and asking for a declaration of war from Congress(though that last one is thrown aside.). Everything else? The President has no choice but to abide by Congress, and Congress presently doesn't want to take up any nominees.

And so it won't. It's that plain and simple. And there's nothing in the text that suggests it can't be done. Other than your crying out that refusal to vote(advice/consent) is a violation of Article II's text, which it isn't. Because as I clearly elaborated: Article II is not authoritative, it is not demanding. It simply lays out the nominating procedure.

The burden of proof is on the Democrats to show where this demand is expected of Congress. The only demand, is on the President(what he shall do). It doesn't make any demands on the Senate. It does not say "The Senate shall". Whereas you cannot possibly show this, I can easily infer that Congress has the right to do pretty much anything that is not in the letter nor violates the spirit of the law. And Congressional refusal is in my view consistent with a separation of powers.

He made an appointment, they just don't want to hear it. Perhaps they'll get to it, sometime. But that's not denying the President's power. That's acknowledging how powerless the executive branch truly is. It does not have legislative authority. Perhaps, in addition to amending Article II you might want to create a new system for nominees that doesn't involve the legislative branch.

I already made it. Any so-called obligation to the Senate doesn't exist. Just because the President presumes the power of appointing, doesn't mean the Senate has an obligation to respond. It doesn't, and like we agreed: They don't even have a timetable. You want an elaborate process for appointees? Like I said: Constitutional Amendment baby.

But right now, Article II is no way enforceable. The only reason this issue has come up now, is that this is the only time a political party decided not to even bother having hearings. And it's perfectly legal(better to say: It's not illegal). It's in the grey murky waters of technicalities. You lose on this one, which is why I keep saying: Amendment. If you want it stricter, make it stricter.

You want me to go further? Congress doesn't even have to pass legislation!(Other than of course, financing and legalizing tender and issues related to that.). Other than that, there isn't anything demanding or necessitating political action by our political representatives.(The reason for this, of course is deep within our political history: The British Monarchy.) An overreaching Federal Government was not in the interest of the Founders.

Unless Obama were to name several nominees and distinguish them as a class. (What, "Obama's nominees" or something?), Merrick Garland is merely an individual, not a part of a class.

As mentioned previously, we could make the argument that the Senate hasn't advised a commander in chief in quite some time on his presidential picks. They've only voiced their consent(or dissent) via the voting process historically. Now, the Senate has chosen to withdraw their consent as well as their advice. And they're perfectly within their legal rights to do so.

Does that leave the President and this Court in Limbo? Yes it does, I leave no doubt to that fact. But the remedy is simple: Either the President give the Republican Congress a Justice it can vote on, or go for the Constitutional Amendment. Your call (Or his).

PS. I hold the Political State as superior to the Court, not only because the Court has failed to protect the State, but that the Court is utterly unequipped to defend National Interests. The Court is little more than autocratic judges, who view the world only through the lens of law, not through the lens of social political circumstances and thus are unable to render effective rulings(see: Dred Scott).

The Court's abolition has been at least 100 years in the making. We're just now politically aware and conscious of the fact, and Americans are more receptive to reform than ever. So now I'm calling for its abolition.

Not quite. He didn't say it because he's not as flamboyant as yours truly. McConnell's just beating around the bush to say what a good deal of us think: The man's incompetent(Obama). But their position isn't to "pretend" anything. But that rather, they refuse to vote on any appointee. They're holding a basic protest. This isn't rocket science. If Obama wants them to vote, he'd nominate someone who would get their vote.

Because it's perfectly legal. And I'd argue as it should be: For the power vested in the executive to select appointees was granted in a very different era. One where politicization wasn't rampant, and one where our presidents were at least competent. Given the political incompetence of mainstream Washington, the power of appointments should return back to the people.

Same thing with the Justices. They should be neutral, unbiased with respect to the law. Given the all-too-apparent bias, the Court is tainted. Any justice with a political view or preference is disqualified from holding that most esteemed seat.

You're the one who doesn't get it. It's not written anywhere, it's not presumed. Therefore, within that vague space, the Republicans can do pretty much anything they want. And it doesn't matter the timing. Whether Obama named a nominee before hand or not, if the Republicans didn't want to exercise it, they didn't want to exercise it. Obama can't make them, as much as that frustrates you and him lol.

No, Mitch McConnell presumes he'd lose the argument. Me? I'd win it. I AM winning it, you just don't want to accept it. Which reminds one of the definition of winning an internet argument: Like the special olympics lol.

I would make the point about the people being able to nominate the SCOTUS judge by passing an amendment to do precisely that, and then putting the buck on Obama's desk. Republicans are indeed cowards, who wouldn't take the fight as far as I would. I'd also state that the President isn't guaranteed his nominee, just that a hearing takes place.

And a hearing WILL take place, just when the Senate is good and ready. This stalemate could go on indefinitely, even if Hillary wins the Presidency. The only way Dems could stop it, would be to retake the Senate.

It's not entailed if it doesn't exist. You're making a presumption of responsibility that doesn't exist. I'm presuming that if it's not written down, it's not enforceable. And we both agreed to the Basic Language clause. I win, you know it.

You're right, this has become quite circular and thus I won't bother with the rest of the post. But my interpretation doesn't need to be defended. It's sacrosanct, it's absolute fact. I presume nothing other than the fact that there isn't any authoritative language, which there isn't. You on the other hand, have made a presumption and thus you're the one with the burden of proof. Prove that it's there. Not that you THINK it's there, but that it's absolutely there. Nothing less will be acceptable in a SCOTUS docket.

 

You evidently don't understand the first thing about Constitutional jurisprudence. My argument is directly founded on what the Constitution states: That the President is required to make appointments. To the text: "[The President] shall have power... and, by and with the advice and consent of the Senate, shall appoint..." 'Shall' is a legal honorific used in the 18th century to connote obligation. It is a more abbreviated version of "it is so ordained, that." Making appointments is an imperative for the President; and whether the Senate likes it or not, they are implicated in the President's exercise of the appointment-power. I have not merely shown the evidence for this claim; I have logically proven it.

Yeah, now that's a laugh.

The political stalemate exists today, because such a maneuver by the Senate is unprecedented in the history of the United States, so there is no formal judicial ruling on the matter to appeal to. When the case is eventually brought before a (restored) Court, I have no doubt how the Court will rule - owing to the many proofs I have cited.

This is the core of your argument, and unfortunately for you, it involves a pretty basic logical fallacy, i.e. the Appeal to Ignorance.

There's the Appeal to Ignorance (which you go on to make many, many more times in your post). You're using it to attempt to hide the radical nature of the claim that you are making: "The Constitution doesn't prohibit this move by the letter - therefore it is allowed." Have to say this ploy is kinda obvious; it certainly would not stand up in legal arguments.

The Constitution directs the Senate to "advice and consent" as a condition for the appointment of the President's nominees. That the President must appoint, is clear by the text (the normative force of "shall" in 18th century legal language, see above). That "advice and consent" be construed in a manner which facilitates the President's power of appointment - not negates it - is the sort of straightforward inference regularly drawn in Constitutional jurisprudence. But McConnell's attempt to directly contradict this point is something unprecedented in American history, and it gives you the opportunity (temporarily) to make play as if it were an ordinary part of the Senate's power - when if fact it is nothing but an Unconstitutional power-grab.

Again: You are making the novel claim, never made before in the history of S.C. appointments: that abstention from consent (and abstention not just from a given nominee, but from all nominees as a class) is supported by the text, just because no explicit provision to the contrary exists. That is the appeal to ignorance. The typical purpose of the employment of this fallacy, is to try to shift the burden of proof. While the burden always goes to the person making the novel claim, by the appeal to ignorance you attempt to shift the burden - so you say "point to the line where it says that it is prohibited for the Senate to abstain from consent."

Sorry, but standard jurisprudence says that the plain reading of the text is the normative interpretation. The Constitution states that the the nominee is approved contingent on the Senate's advice and consent. Your attempt to describe this provision of the Constitution as the "description of a procedure" is just another ploy to resist your assumption of the burden of proof. Article II states the procedures, yes - but these procedures are also requirements, since the Constitution ordains that they will be made, and there is no other way that appointments can be made.

Furthermore, your claim that advice and consent can "take any form" does not hold water. If you insist on being able to make a free interpretation of the text, such that it gives the Senate the power abstention, it is equally open to the President to interpret deliberate non-action on nominees as de facto consent. Indeed, after all that makes more sense, than the claim that the Senate is empowered to nullify the President's enumerated, constitutional prerogative duty to make appointments.

The fact remains that the text says nothing about the Senate having discretion in that matter; and per the basic language criterion, you don't get to supplement the text with conditions and exceptions which are not included in it. The whole purpose of Article Sec. II is for making appointments. This is affirmed by the plain import of the text itself, as well as the manner in which it has been interpreted throughout American history. The verbal nouns "advice" and "consent" do not connote acts of omission: the text does not say - nor can it reasonably be read as saying - that the Senate can "delay," defer," "withhold," or "abstain from" consent. If the Senate could do these things, it would run directly counter to the purpose of Article II Sec. 2 (making appointments).

Given that the whole purpose of Article II Sec. 2, is for the purpose of making appointments, the burden is on you to show how blocking this process and totally disregarding the nominee counts as "advice" or "consent" pursuant to the end of making appointments. That is what Scalia himself would require you do do; but of course you can't do it, which is why you haven't even tried, but instead simply made ad nauseum attempts to shift your burden of proof onto Democrats.

Pffft. I've already answered, and refuted, this point.

Your analogy is weak (and all arguments by analogy are typically weak). A rape involves only two actors. This Constitutional Crisis that you are abetting, involves four - All three Branches of government, as well as the fundamental law of the United States. The actors, also different from the case of rape, are according to the fundamental law, obliged to interact. Anyway, the weakness of your analogy is shown by the inverse of your argument; just because the Senate did not state its approval, does not mean that the nominee was not accepted. Once you start making novel claims about prerogatives of the Senate that can be found nowhere in the text, it's open to all comers to make judgments on the scope of those imagined prerogatives. Like I said, since the purpose of Article II Sec. is making appointments, not blocking the entire appointments-process, the more reasonable assumption in the case of Senate inaction, is that the Senate has no objection to the appointment; 'cause if they did, they would take a vote and reject it.

It's not the burden of proof, but I have graciously supplied it anyway. Thus you're failing not only the burden of proof (which lies with you) but also the burden of rejoinder, as you are not attempting to rebut my arguments, but are merely repeating your appeal to ignorance.

I did show it; I proved it, by hypothetical syllogism.

Your whole defense of the Senate's Unconstitutional obstruction of Obama's nominee's depends on this claim - but I have shown how your interpretation of "consent" contradicts the law. And to that, you have had nothing to say.

I know that's your view. But unfortunately for you, this is not simply a matter of your opinion. I have also show how your interpretation contradicts the spirit of the law.

Garbled nonsense. No appointment has been made. The Senate is blocking the very possibility of an appointment being made; hence they are violating the President's power, violating the Court's power, and violating the Separation of Powers.

Endlessly repeating ad nauseum that the burden of proof is not on you to support your claims, does not lift it. No presumption of the President's power of appointment - it's a prerogative obligation of the President, laid out in clear language in Article II. Sec. 2.

It's obvious that you didn't understand the argument I made in the last post. Never mind, it's not worth it to try to educate you.

No, as you said earlier - it is Senate consent which the operative term in the Senate's role in S.C. nominee confirmations. "Advice" is pursuant to consent. Consent can be given with or without advice.

Your very admission of this fact, is all by itself strong prima facie evidence that your position is Unconstitutional. The interactions of the Branches cannot be construed in a way which thwarts such basic functions of government as appointments, since that violates the Separation of Powers. That is the direct result of putting the Court "in limbo."

- Another Unconstitutional belief of yours.

Again, the honesty is refreshing. You're willing to crap all over our most basic institutions, because you feel you have been on the losing end, politically. Not that I'm surprised to hear that, coming from a conservative. You have long since proven that power, not respect for the rule of law, is all the interest you have in politics. SO... you'll lie - you'll even be lazy about it, like your arguments in this thread - all that matters for you is that you get your preferred political outcome, by any means necessary. So it ever was with you guys - enemies of democracy, going back to ancient times...

Hah! Nope. Just the classic 'not smart enough when to know you're beat' syndrome.