Joe Steel
DP Veteran
- Joined
- Sep 30, 2007
- Messages
- 3,054
- Reaction score
- 560
- Location
- St. Louis, Missouri, USA
- Gender
- Undisclosed
- Political Leaning
- Very Liberal
"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.
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.
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.
... The Constitution is clear, the Senate must consent.
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, ..."
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?
Not so.
If he is at trial he already has pled "not guilty."
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.
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.
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.
Of course, you can provide a citation. Right?
The mere fact he is being tried is a denial of guilt. His silence is irrelevant.
You could find them yourself easily. Here is a report from the Congressional Research Service October 2015.
fas.org/sgp/crs/misc/R44234.pdf
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?
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...
Exactly.
The Senate's silence is its consent.
"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.
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.
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
I can't imagine why you think either is applicable. Desperation maybe?
You not understanding how the US Constitution is applicable, explains a lot.
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