If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?
That is a bit of a debate point.
Prior to the 17th Amendment the idea was to balance Presidential appointment of a Supreme Court judge against State interests. As Southern Dad points out before the 17th Amendment, filling the Federal Senate was handled by various State legislatures to varying degrees of problems. Post the 17th Amendment the idea is the Senate, now elected by the voter, is still a counterbalance to Presidential nomination for a vacant Supreme Court Seat.
The reason I am going through all this is ultimately the voter is responsible for a Supreme Court Seat being vacant for too long. If the people elect a President of one party, but hand the Senate (and Congress) to the other party it is all that more unlikely the two will agree on a Supreme Court nominee. Not always the case, but happens to be a strong potential consequence that a liberal leaning President will nominate a liberal leaning judge and a "conservative" Senate would not agree to that.
Present conditions have a slightly different take on this though. Republicans in the Senate now are not even allowing a nomination to proceed, basically trying to ignore it until post the election for a new President. In this case the Republican Senate is in error, they have no real Constitutional authority to determine all on their own that a sitting President is too close to the end of his 2nd term to permit a nomination process for a vacant seat. I've looked into this a couple of times, and cannot find much supporting what the present Congress is doing.
I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.
Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.
But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.
I would opine it's always wrong to not consider a nomination.If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?
I believe your sentiments are in the right place, but there's no mechanism in place for the President to secure a list from the GOP (or the Democrats)! That's why we have the current process set through the Constitution.I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.
Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.
But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.
I believe your sentiments are in the right place, but there's no mechanism in place for the President to secure a list from the GOP (or the Democrats)! That's why we have the current process set through the Constitution.
This is not about affirming or denying a nominee, but about denying the nomination process itself!
There would be no problem here if the Senate voted and denied the nominee, as is the accepted Constitutional process. But the GOP fear if the nomination process sees the public light, the pressure from the citizenry will come to bear on their activities - so the are not allowing the proceedings. And when you fear the citizens turning against you for making a process public, what's the saying about your motives and operation?
There ya' go!
Well, here's the text itself:Nothing in our Constitution requires the Senate to actually advise and consent on the nomination. Did you know that if the Senate does confirm a nominee, the President isn't required to actually follow through with the appointment? If Hillary R Clinton were to win, then the Senate in lame duck confirmed Merrick Garland, the President could decide not to nominate him. Then he could nominate someone very far left or let Hillary do it. What was Senator Obama's views on last year appointments to the SCOTUS?
That is a bit of a debate point.
Prior to the 17th Amendment the idea was to balance Presidential appointment of a Supreme Court judge against State interests. As Southern Dad points out before the 17th Amendment, filling the Federal Senate was handled by various State legislatures to varying degrees of problems. Post the 17th Amendment the idea is the Senate, now elected by the voter, is still a counterbalance to Presidential nomination for a vacant Supreme Court Seat.
The reason I am going through all this is ultimately the voter is responsible for a Supreme Court Seat being vacant for too long. If the people elect a President of one party, but hand the Senate (and Congress) to the other party it is all that more unlikely the two will agree on a Supreme Court nominee. Not always the case, but happens to be a strong potential consequence that a liberal leaning President will nominate a liberal leaning judge and a "conservative" Senate would not agree to that.
Present conditions have a slightly different take on this though. Republicans in the Senate now are not even allowing a nomination to proceed, basically trying to ignore it until post the election for a new President. In this case the Republican Senate is in error, they have no real Constitutional authority to determine all on their own that a sitting President is too close to the end of his 2nd term to permit a nomination process for a vacant seat. I've looked into this a couple of times, and cannot find much supporting what the present Congress is doing.
Well, here's the text itself:
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
[Article II, Section 2, Clause 2]
I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.
Do you?
Well, here's the text itself:
"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."
[Article II, Section 2, Clause 2]
I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.
Do you?
I appreciate your opinion and expertise in this matter, and if I understand correctly you're making the argument that the President is Constitutionally directed to nominate, but the next clause applying to the Senate is a requirement encumbrance upon the President, but optional to the Senate. Correct?The President "shall nominate" the officers listed. That is an unconditional requirement. He also "shall appoint" those officers, but that requirement is conditional. The condition is that his appointment must be made "by and with the advice and consent of the Senate." Nowhere in the clause, though, is the Senate required to act. It is left free either to give or withhold its advice and consent as to the President's nominations. Also, both the Senate's advice and its consent are needed for an appointment to take place.
I take all this to mean the Senate may do any of several things. It may consider a nominee, advise the President of its views about him, and consent to his appointment. Only in this case can the appointment be made. Or, the Senate may advise the President of its views while not consenting to the nomination, so that he may nominate some other person whose appointment it is more likely to consent to; or it may consider a nominee and not consent to appoint him, without advising the President as to why it objects to that person; or it may take no action at all, either to advise the President about a nomination or to consent to it.
You are correct in that the Constitution does not propose a time frame, but I see nothing claiming review is an optional process. See my reply to matchlight. You're essentially saying the Senate can eliminate the Supreme Court (by never acting), and I find it extremely suspect the framers intended that.Read it. Does it say that the Senate has to advise and consent? It says that the president has the power to nominate but it does not anywhere in it say that the Senate has to act in any time frame. How did Senator Obama feel about last year appointments to the SCOTUS?
You are correct in that the Constitution does not propose a time frame, but I see nothing claiming review is an optional process. See my reply to matchlight. You're essentially saying the Senate can eliminate the Supreme Court (by never acting), and I find it extremely suspect the framers intended that.
We're debating Constitutionality, and you now want to make Mr. Obama the Judge & Jury here? It seems Mr. Obama's currently in agreement with me, so I suppose the case is closed.What was Senator Obama's view on last year appointments by the President to the Supreme Court? What has changed?
We're debating Constitutionality, and you now want to make Mr. Obama the Judge & Jury here? It seems Mr. Obama's currently in agreement with me, so I suppose the case is closed.
No, what I'm saying is: This is bringing politics into what I see as a Constitutional discussion.Ah yes. I understand. The fact that when President Obama was Senator Obama and he was not in favor of the President making last year appointments to the Supreme Court should be set aside and not discussed because now the shoe is on the other foot. As I said, nothing says the Senate has to give its advice and consent. Personally, I think that they should advice and consent on Merrick Garland. President Trump will get to appoint Ruth Bader Ginsberg's replacement.
No, what I'm saying is: This is bringing politics into what I see as a political discussion.
The thing is, I don't read the bolded as an optional one way predicated clause: "He shall have Power, by and with the Advice and Consent of the Senate."
If it's read as you are claiming, that reading has just given the Senate the option in killing-off the Supreme Court, and once again I don't believe the framers provided a co-equal branch of government so that one of it's other two equals could kill it.
The politics of this are a separate issue, and they say whatever's expedient, with Obama being no exception.
Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.Right, does it have a timetable on that? President Obama is a university educated constitutional scholar. Are you saying that as a US Senator, he would knowingly go against the Constitution when he stated his opinion about last year SCOTUS appointments? Like it or not this is a political topic, and it's on a political forum.
Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.
The Constitution does *not* give specific time-frames to many of it's directives, but that does not mean they can be *abrogated*. So if your argument is the nominee process can be indefinitely delayed due to no time period specified by the Constitution, I argue you are wrong!
And ironically enough, it will be the Court itself that decides this all, if a citizen with standing files!
Perhaps in this specific incident, yes.Here's the thing, by the time the SCOTUS were to decide it... It would be a moot point.
Perhaps in this specific incident, yes.
But it seems like a good thing to get it decided or codified in some way.
What if the Dems decide instead of 1 year, it should be 18 mos prior to an election? or 23 mos? I don't like seeing the Court deficient in any manner at all.
And actually, in the President's not-too-long-ago interview on Fox he seemed to issue a veiled threat to the Dems doing just this someday (delay much longer to their advantage - perhaps much of a term!).
If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?