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Qui tacet consentire videtur

Joe Steel

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"He who is silent is taken to agree."

Has the Senate already agreed to the nomination of Merrick Garland to the Supreme Court?

Matthew C. Stephenson writhing in the Yale Law Journal suggests they may have: Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

http://www.yalelawjournal.org/essay/can-the-president-appoint-principal-executive-officers-without-a-senate-confirmation-vote


To be clear, he's not arguing in favor using this "loophole" in the Constitution for Supreme Court vacancies. He's proposing it as a way of filling vacancies in Executive Branch positions; but there's no reason why it couldn't be used for vacancies on the Court. Charles P. Pierce discusses the idea in How We Can Sort Out This Supreme Court Mess.

Here's How to Get the Supreme Court Vacancy Filled

Dahlia Lithwick discusses the idea in The Reverse Bartleby

How Merrick Garland can outfox Republican obstructionists.
 

joG

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"He who is silent is taken to agree."

Has the Senate already agreed to the nomination of Merrick Garland to the Supreme Court?

Matthew C. Stephenson writhing in the Yale Law Journal suggests they may have: Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

http://www.yalelawjournal.org/essay/can-the-president-appoint-principal-executive-officers-without-a-senate-confirmation-vote


To be clear, he's not arguing in favor using this "loophole" in the Constitution for Supreme Court vacancies. He's proposing it as a way of filling vacancies in Executive Branch positions; but there's no reason why it couldn't be used for vacancies on the Court. Charles P. Pierce discusses the idea in How We Can Sort Out This Supreme Court Mess.

Here's How to Get the Supreme Court Vacancy Filled

Dahlia Lithwick discusses the idea in The Reverse Bartleby

How Merrick Garland can outfox Republican obstructionists.

What mess? It is quite okay and inside the Constitution right now and will be corrected as soon as Clinton assumes power next year.
 

Captain Adverse

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That is a B/S argument and not implicit in the law.

Otherwise a defendant in a criminal case, exercising his right to remain silent, is agreeing that he is guilty. :roll:

Look at my tagline. Just because I stop responding does not mean I agree with the point or accept the opposition argument. There are a lot of points made I don't respond to for all sorts of reasons, none of which mean I concede or consent.

The Constitution is clear, the Senate must consent.
 
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Beaudreaux

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Read the actual Constitution - Article II, Section 2, Clause 2 - the key clause doesn't say "as he wishes and with or without" the advice and consent, but rather it restricts the President's power to appoint by requiring that he may do so only "... by and with the Advice and Consent of the Senate, ..."

"By and with," not "as he wishes and without" the advise and consent of the Senate.

The Constitution is what matters, not some errant law professor's ideological rant.
 

Captain Adverse

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Read the actual Constitution - Article II, Section 2, Clause 2 - the key clause doesn't say "as he wishes and with or without" the advice and consent, but rather it restricts the President's power to appoint by requiring that he may do so only "... by and with the Advice and Consent of the Senate, ..."

"By and with," not "as he wishes and without" the advise and consent of the Senate.

The Constitution is what matters, not some errant law professor's ideological rant.

Correct.

The ideology implicit in the OP position is the same one that supports the idea of the Imperial Presidency.

The President doesn't need Congress to enact law, he can just dictate "Executive Orders" which have the force of law.

The President does not need the Court's judicial review, he can just instruct his agencies to ignore the law.

If he wants, he can just appoint as many Justices as he wants to the SCOTUS to make sure it interprets the laws as he wants. Something Franklin Roosevelt strove to do back when he was pushing his New Deal.

Sorry folks, like it or not, until the Senate acts to confirm an appointment the appointment does not stand.
 

Joe Steel

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... The Constitution is clear, the Senate must consent.

It is not clear. It doesn't mandate the form of he consent.

McConnell is the majority leader and Biden is the president of the Senate. Which of them speaks for the Senate if no vote has been taken?
 

Joe Steel

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Read the actual Constitution - Article II, Section 2, Clause 2 - the key clause doesn't say "as he wishes and with or without" the advice and consent, but rather it restricts the President's power to appoint by requiring that he may do so only "... by and with the Advice and Consent of the Senate, ..."

Exactly.

The Senate's silence is its consent.
 

Captain Adverse

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It is not clear. It doesn't mandate the form of he consent.

McConnell is the majority leader and Biden is the president of the Senate. Which of them speaks for the Senate if no vote has been taken?

It is clear, and the Senate decides what form that consent takes. Currently that process requires a vote of the whole body after an examination for qualification by the Senate Judiciary Committee.

And the answer to your question is Neither.

The Senate has rules which it set up itself on how to handle business. That's why they have assigned committees to deal with ongoing areas of business.

However, at any time members of the Senate can move to bring any issue to the body of the Senate, by-passing committees. They could do this NOW. Yet they have not.

Ever asked yourself why? The answer is that doing so undermines the power of the committees THEY sit on.

So if the currently Republican controlled Judiciary Committee states they will not consider any candidate until such and such a time...then the Senate's action in not calling it to the full house IS a decision. The decision to abide by the committees refusal to do so and wait, acting on behalf of the whole Senate.
 
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Captain Adverse

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Not so.

If he is at trial he already has pled "not guilty."

Actually, most of the time his defense counsel has pled for him. Just as his defense counsels acts for him in all ways unless the defendant has elected to represent himself pro se. The pleading is either an overt acceptant of guilt, or a pre-requisite to set up a trial to determine if the facts show guilt or innocence.

Meanwhile, the fact remains that a defendant who remains silent and does not testify on his own behalf gives the many members of a jury the impression he is guilty based on that "silence indicates consent" nonsense. Nothing could be further from the truth. There are many reasons defense counsel may recommend the defendant not testify. None having to do with guilt.
 
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It is clear, and the Senate decides what form that consent takes. Currently that process requires a vote of the whole body after an examination for qualification by the Senate Judiciary Committee.

And the answer to your question is Neither.

The Senate has rules which it set up itself on how to handle business. That's why they have assigned committees to deal with ongoing areas of business.

However, at any time members of the Senate can move to bring any issue to the body of the Senate, by-passing committees. They could do this NOW. Yet they have not.
Ever asked yourself why? The answer is that doing so undermines the power of the committees THEY sit on.

So if the currently Republican controlled Judiciary Committee states they will not consider any candidate until such and such a time...then the Senate's action in not calling it to the full house IS a decision. The decision to abide by the committees refusal to do so and wait, acting on behalf of the whole Senate.

Bring any issue to the senate, yes...but doesn't the majority leader still have to bring it to the floor for a vote?
 

Joe Steel

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Meanwhile, the fact remains that a defendant who remains silent and does not testify on his own behalf gives the many members of a jury the impression he is guilty based on that "silence indicates consent" nonsense. Nothing could be further from the truth. There are many reasons defense counsel may recommend the defendant not testify. None having to do with guilt.

The mere fact he is being tried is a denial of guilt. His silence is irrelevant.
 

Captain Adverse

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Of course, you can provide a citation. Right?

You could find them yourself easily. Here is a report from the Congressional Research Service October 2015.

fas.org/sgp/crs/misc/R44234.pdf
 

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The mere fact he is being tried is a denial of guilt. His silence is irrelevant.

The mere fact that the Senate has not consented shows the appointment has not been confirmed Constitutionally. Their silence is not consent.
 

Joe Steel

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The mere fact that the Senate has not consented shows the appointment has not been confirmed Constitutionally. Their silence is not consent.

No one knows if the Senate has consented or not without a vote unless some rule makes the vote unnecessary. Which one is it?
 

Captain Adverse

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No one knows if the Senate has consented or not without a vote unless some rule makes the vote unnecessary. Which one is it?

Do you actually read what you write? If they haven't voted then they haven't given consent. You are the one advocating that silence (i.e. no vote) means consent.

However, as already explained, the SENATE decides how such consent is provided. If they have not followed those rules then consent has not been given. Period.

Now if you can't understand that, then that's your problem.
 

Joe Steel

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Do you actually read what you write? If they haven't voted then they haven't given consent. You are the one advocating that silence (i.e. no vote) means consent.

Did you actually read the first posting? That's exactly what I'm advocating.


However, as already explained...

You have explained nothing. You merely made and unsupported assertion. Now I'm asking you to support it. Name the rule which says consent is denied without a vote.
 

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Exactly.

The Senate's silence is its consent.

No. It is not. Consent must be positively given, not negatively implied, as described in the actual Constitution. The Advise part has also been given, in the statements that they will not take up the issue, therefore not giving their consent.

As for your "qui tacet consentire videtur" I have another Latin quote for you: quod gratis asseritur, gratis negatur - look it up; and as far as what this President has done with the Constitution, well, here's another Latin phrase for you: abusus non tollit usum - look that one up as well. If you need help understanding them, just ask.
 

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"He who is silent is taken to agree."

Has the Senate already agreed to the nomination of Merrick Garland to the Supreme Court?

Matthew C. Stephenson writhing in the Yale Law Journal suggests they may have: Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?

http://www.yalelawjournal.org/essay/can-the-president-appoint-principal-executive-officers-without-a-senate-confirmation-vote


To be clear, he's not arguing in favor using this "loophole" in the Constitution for Supreme Court vacancies. He's proposing it as a way of filling vacancies in Executive Branch positions; but there's no reason why it couldn't be used for vacancies on the Court. Charles P. Pierce discusses the idea in How We Can Sort Out This Supreme Court Mess.

Here's How to Get the Supreme Court Vacancy Filled

Dahlia Lithwick discusses the idea in The Reverse Bartleby

How Merrick Garland can outfox Republican obstructionists.


To be clear......... Obama didn't appoint Garland to fill the vacant SCOTUS seat. He appointed Garland as a cheap and inefective Political ploy to paint the GOP as obstructionist.

Inefective because NO ONE save for hard core Obama supporters gives a rats ass.

This is Obama thinking he has more influence that he actually does

He should try and remember that just 2 years ago he and his signature legislation were so toxic to the Democrats reelection chances that they both had to be ignored

And none of thats changed. He's still a huge liabillity for the Democrats
 

Joe Steel

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No. It is not. Consent must be positively given, not negatively implied, as described in the actual Constitution. The Advise part has also been given, in the statements that they will not take up the issue, therefore not giving their consent.

As for your "qui tacet consentire videtur" I have another Latin quote for you: quod gratis asseritur, gratis negatur - look it up; and as far as what this President has done with the Constitution, well, here's another Latin phrase for you: abusus non tollit usum - look that one up as well. If you need help understanding them, just ask.

I can't imagine why you think either is applicable. Desperation maybe?
 

Joe Steel

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To be clear......... Obama didn't appoint Garland to fill the vacant SCOTUS seat. He appointed Garland as a cheap and inefective Political ploy to paint the GOP as obstructionist.

Inefective because NO ONE save for hard core Obama supporters gives a rats ass.

This is Obama thinking he has more influence that he actually does

He should try and remember that just 2 years ago he and his signature legislation were so toxic to the Democrats reelection chances that they both had to be ignored

And none of thats changed. He's still a huge liabillity for the Democrats

None of that is evident.
 
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