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Does Obama need the Senate to appoint Merrick Garland?

Does Obama need Senate approval in order to appoint Merrick Garland?

  • Yes

    Votes: 15 78.9%
  • No

    Votes: 4 21.1%

  • Total voters
    19

iacardsfan

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I came across this article last night and found it a fascinating interpretation of the Constitution. Here is an excerpt from the Opinion piece.

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.

The whole piece can be found here: https://www.washingtonpost.com/opin...696700-fcf1-11e5-886f-a037dba38301_story.html

I think it is an interesting argument, and it sets up a President vs. Congress conflict that could redefine the balance of power. I think there are valid points brought forward in this piece, but at the same time I think there are significant short-term POLITICAL implications, that people will first and foremost be concerned over. I prefer to put aside politics and look at the Constitutional impacts and the long term political affects of this move.

With this all in mind, does Obama need Senate approval to appoint Merrick Garland to the Supreme Court?
 

CanadaJohn

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I came across this article last night and found it a fascinating interpretation of the Constitution. Here is an excerpt from the Opinion piece.



The whole piece can be found here: https://www.washingtonpost.com/opin...696700-fcf1-11e5-886f-a037dba38301_story.html

I think it is an interesting argument, and it sets up a President vs. Congress conflict that could redefine the balance of power. I think there are valid points brought forward in this piece, but at the same time I think there are significant short-term POLITICAL implications, that people will first and foremost be concerned over. I prefer to put aside politics and look at the Constitutional impacts and the long term political affects of this move.

With this all in mind, does Obama need Senate approval to appoint Merrick Garland to the Supreme Court?

I'm no constitutional scholar, but isn't the simple way to get around such a threat just to bring the nomination up in the Justice Committee and defeat it, not sending it to the full Senate for a vote? If the President wants speedy action, give it to him, with a defeat of his nominee.
 

OrphanSlug

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It would sure be a fiasco if Obama tried to do this without Congressional approval. Not too sure I agree with that article's interpretation.
 

iacardsfan

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I'm not constitutional scholar, but isn't the simple way to get around such a threat just to bring the nomination up in the Justice Committee and defeat it, not sending it to the full Senate for a vote? If the President wants speedy action, give it to him, with a defeat of his nominee.

I think that is even more preferable than not doing anything. In my eyes the Senate is neglecting to follow through it's Constitutional duty, even if that constitutional duty is to reject this nomination 0-100. I see this as a prompt to action.
 

CanadaJohn

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I think that is even more preferable than not doing anything. In my eyes the Senate is neglecting to follow through it's Constitutional duty, even if that constitutional duty is to reject this nomination 0-100. I see this as a prompt to action.

If McConnell can ensure that his majority membership on the Justice Committee will defeat this nominee, keeping his name from getting to the Senate floor, he should do so and end the speculation. Personally, I think it's unfair to the man nominated, even though he knew what he was getting into by accepting the nomination.
 

iacardsfan

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If McConnell can ensure that his majority membership on the Justice Committee will defeat this nominee, keeping his name from getting to the Senate floor, he should do so and end the speculation. Personally, I think it's unfair to the man nominated, even though he knew what he was getting into by accepting the nomination.

I don't know if there is a majority to be honest. And going to the floor isn't an option, because there is the risk that the Dems can whip the votes.
 

Captain Adverse

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Nope it requires advice and consent.

Without consent there can be no appointment.
 

tres borrachos

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It would sure be a fiasco if Obama tried to do this without Congressional approval. Not too sure I agree with that article's interpretation.

I had the same reaction. I'm opposed to what the Republicans in the Senate are doing, refusing to hold hearings. But I don't think it's a good idea for Obama to try to ram him through without Congress' approval. I also don't think I agree with the article.
 

iacardsfan

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Nope it requires advice and consent.

Without consent there can be no appointment.

But if the Congress isn't willing to advise, do they forfeit their right to consent?
 

Captain Adverse

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But if the Congress isn't willing to advise, do they forfeit their right to consent?

NO. It is not a mutually exclusive clause. They must consent. The advise part means that they can also make suggestions for him to consider appointing.

Otherwise there is no limitation on the power of the President to appoint anyone to posts listed in Article II. All he would have to do is appoint and send a memo to Congress as an "FYI" if that were not the case.
 
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Chomsky

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I think this is pretty interesting, and it all comes down to this clause: "the president must seek the 'Advice and Consent of the Senate.'"

The use of the word 'consent', would seem to be the stickler. A 'lack of review', is not consent!

Then again, perhaps it could be argued "must seek consent" is not the same as 'must receive consent'?

I dunno about this. The politics would be vicious! So would the P.R. But as bad as it would look for the President, it would also put the GOP on the hot-seat to explain why they're playing politics rather than fulfilling their Constitutional duties.

It would be interesting if the President could threaten this by leaking it, but if the GOP balked and he failed to follow through he would have lost an important political chess match in an important election year.
 

Chomsky

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If McConnell can ensure that his majority membership on the Justice Committee will defeat this nominee, keeping his name from getting to the Senate floor, he should do so and end the speculation. Personally, I think it's unfair to the man nominated, even though he knew what he was getting into by accepting the nomination.
To the bolded.

Given the poor politics, I suspect if the Majority Leader could do this, he would!
 

reinoe

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If he does it by recess appointment then he doesn't need Congress. Rest assured, Congress is not going into recess during Obama's term.
 

MrT

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NO. It is not a mutually exclusive clause. They must consent. The advise part means that they can also make suggestions for him to consider appointing.

Otherwise there is no limitation on the power of the President to appoint anyone to posts listed in Article II. All he would have to do is appoint and send a memo to Congress as an "FYI" if that were not the case.

While I am not sure that I concur with the interpretation in the OP, I do disagree with your latter statement. They still have a limitation even if Obama (or any future president) pursued this method because the Senate could just conduct a hearing and turn down the presidential nominee. It is not every Congress that will just stick their collective fingers in the ears and say, "We can't hear you" and refuse to even conduct a hearing. Hell...this has NEVER happened.

A move like that suggested in the OP would ensure that it never happens again.
 

Helix

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yes, he needs the Senate. and it isn't going to happen.
 

Captain Adverse

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While I am not sure that I concur with the interpretation in the OP, I do disagree with your latter statement. They still have a limitation even if Obama (or any future president) pursued this method because the Senate could just conduct a hearing and turn down the presidential nominee. It is not every Congress that will just stick their collective fingers in the ears and say, "We can't hear you" and refuse to even conduct a hearing. Hell...this has NEVER happened.

A move like that suggested in the OP would ensure that it never happens again.

The first example regarding Roosevelt is incorrect, in that it did NOT have "the full force of law." As President he held the executive branch to adhering to it and he could honor it, but it was not "Law" until the Senate approved it. The next President was under no obligation to adhere to that treaty absent Senate consent.

Again, referring to Obama and the SALT talks, they only have specious validity during the term of the seated President to honor them. They could also be rightfully repudiated by his successor because they only had the "full force of law" while the negotiating President held office.

It is a stretch to try to use those examples as precedent for appointing a Supreme Court Justice without the consent of Congress, as this is clearly outside the scope of Presidential power.

The Constitution states "Consent" to have legal validity. You cannot bypass this requirement.
 
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SocialD

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But if the Congress isn't willing to advise, do they forfeit their right to consent?

That's not how it works.
What the president 'can' do is temporarily appoint Garland during the congressional recess period. This would expire at the end of September. However it appears the senate is not going to recess.
Pres Obama has already if we all remember, tried to make an appointment claiming congress was in recess when they were not. This went to the supreme court and the scotus ruled unanimously against Pres Obama.
So he will have to play by the rules.
 

CanadaJohn

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If he does it by recess appointment then he doesn't need Congress. Rest assured, Congress is not going into recess during Obama's term.

I could be wrong, but I'd be surprised if the President has the ability to seat a Supreme Court Justice via a recess appointment.
 

CanadaJohn

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To the bolded.

Given the poor politics, I suspect if the Majority Leader could do this, he would!

I don't know who's on the Justice Committee for the Republicans, but considering the Obama Presidency I'd expect that McConnell would have pretty loyal, solid conservative Republicans on it. But then, the US Committee system seems to have a seniority element that may negate that approach.
 

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I'm no constitutional scholar, but isn't the simple way to get around such a threat just to bring the nomination up in the Justice Committee and defeat it, not sending it to the full Senate for a vote? If the President wants speedy action, give it to him, with a defeat of his nominee.



I question whether the provisions of the US constitution is even in play here. Nonetheless, the Republicans continue to demonstrate they are not ready to govern. Instead of facing the challenge in the usual manner, they become petulant children stomping their privileged little feet going "no I won't, so there."

The average American is earning a living if they can, and many struggle, meanwhile the Nero that is the Republican caucus continues to **** around with "image stunts" like this. For a group trying to shrug off the accusation of obstructionist they sure have a strange way of going about it.

With recent history however, I can see this ending up in front of the current court and hitting the 4-4 wall. And here the Republicans are fully to blame for the lack of improvement in anything
 

Chomsky

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I don't know who's on the Justice Committee for the Republicans, but considering the Obama Presidency I'd expect that McConnell would have pretty loyal, solid conservative Republicans on it. But then, the US Committee system seems to have a seniority element that may negate that approach.
I think a big part of this is: "Can the Repubs and their committee stand the political heat once the nominee hits committee, and the Dems then take to their mouthpieces and the President stands upon the bully-pulpit?"

And: "Do they want to put themselves through this"?
 

Chomsky

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I question whether the provisions of the US constitution is even in play here. Nonetheless, the Republicans continue to demonstrate they are not ready to govern. Instead of facing the challenge in the usual manner, they become petulant children stomping their privileged little feet going "no I won't, so there."

The average American is earning a living if they can, and many struggle, meanwhile the Nero that is the Republican caucus continues to **** around with "image stunts" like this. For a group trying to shrug off the accusation of obstructionist they sure have a strange way of going about it.

With recent history however, I can see this ending up in front of the current court and hitting the 4-4 wall. And here the Republicans are fully to blame for the lack of improvement in anything
This is much about more, than that I bolded.

This Judge is critical to GOP policy. Not the least of which is any rulings related to Citizens United and 2A rights, the former being critical to their funding which allows them to attain and stay in power, and the latter which satisfies their largest funder and political ally. And these are only two of many issues critical to their funding and power.

And of course, yes there's also the social issues which fires-up their base for this election cycle.
 

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This is much about more, than that I bolded.

This Judge is critical to GOP policy. Not the least of which is any rulings related to Citizens United and 2A rights, the former being critical to their funding which allows them to attain and stay in power, and the latter which satisfies their largest funder and political ally. And these are only two of many issues critical to their funding and power.

And of course, yes there's also the social issues which fires-up their base for this election cycle.



I don't care. I don't care if he's the scion of Stalin.

The point I make is that if the Republicans don't like the nomination, feel free to vote against it. Neither democracy nor the American people are served by this childishness.
 

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I would NOT be in favor of President Obama taking this sort of action going around Senate confirmation. It is a clear violation of the procedures laid down in the Constitution.
 

Bodhisattva

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Nope it requires advice and consent.

Without consent there can be no appointment.

^^^ This ^^^

NO. It is not a mutually exclusive clause. They must consent.

Otherwise there is no limitation on the power of the President to appoint anyone to posts listed in Article II.

...and ^^^ This ^^^
 
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