But there is no absolutely basis for doing so. It would be like putting bounds on when the popular vote should take be used instead of the electoral vote. Maybe when the margin is >2%, we should use the the popular vote and ignore the electoral college? Sounds like an improvement to me, but unfortunately there no constitutional basis for that so it’s not something the SCOTUS can decide.
Not necessarily. For example, Jim Jeffords changed parties in May 2001, handing control of the Senate from the GOP to the Democrats. This meant that Daschle took over for Lott as majority leader.
Exactly. If a president won’t sign any laws, the constitution has a specific remedy that must be used. You can’t make up a new one (say, if Congress lacks the votes to override a veto).
Unfortunately, there is no constitutional remedy for a Senate that won’t consent to any nominees. You’d think that if the founders wanted one, they would have put it in. But they didn’t, and you don’t get to make up a new remedy on their behalf.
Yes, of course.
I don’t generally agree with the GOP, but they were right when they said having nine justices at all times is not written in stone. If there is an unfilled vacancy, the republic won’t break down while we wait for a congress and president that can work together.
In general, the constitution tends to give the legislature the last word. This is the branch that can kick out presidents, kick out judges, and try to write new amendments. Probably because the founders considered it the most democratic branch.
It’s helpful to keep in mind that our system of government is basically English Parliament v2.0. And the English Parliament, as sovereign, can do whatever it wants at any time.
I think it’s pretty clear, given that the Senate committed to not approving any justices at all.
I’m sorry you don’t like that outcome, Ravenight. Neither do I. But you seem to think there was some legal move that Obama or other Democrats could have pulled that would have surely gotten Garland onto the SCOTUS, and they were too dumb or cowardly to do it. I find that implausible. If this happens again, things will end up the same way.
What I said is that I don’t care if Garland is rejected with a vote or without a vote. They are both equally legal, and equally bad.
I don’t really worry about sausage-making too much when it inevitably leads to the same result.
What rule compelled them to act? Please, tell me. I’m not a constitutional scholar, but I can’t find ANYTHING that compelled them to act. Should there be a rule that does? Hey, I’m good with that. Sadly, they have to be the ones to make the rule up in the first place.
The floor leaders are elected when the Congress starts - they didn’t hold a new election to decide who Democratic floor leader was, he just went from being the minority leader to being the majority leader.
There is no absolute basis for deciding which kinds of censorship violate free speech, or which gun control laws violate the second amendment, which police procedures constitute illegal search, and so on and so on. This is exactly what the court does in nearly every case it rules on: help to provide a clarifying principle by which future decisions in specific ambiguous cases can be judged.
What are you talking about? The Constitution also doesn’t spell out what happens when Congress makes a law that violates equal protection or gun rights or whatever, yet the court will provide guidance for how that law can and can’t be enforced, or it will require that a statute be amended or replaced with one that conforms to the law. Probably the easiest example of this is Miranda rights.
That’s all true, but it doesn’t change the fact that holding a seat vacant until you get the president you want is clearly an overreach by the Senate to stack the court the way it sees fit. I mean, let’s say that Trump gets 3 appointments because Kennedy and Ginsburg call it quits in the next 2 years. So the court is now 6 truly conservative justices, most of them young, and 3 liberals, one of whom is about to retire. The Dems get full control in 2020 and decide they need to do something about the court, so they eliminate 3 positions - 6 justices seems fine, I mean it was good enough for Washington, right? If you’re kicking judges off, clearly the most-junior ones go first, so we get rid of Trump’s guys. Let that go through a cycle of rulings, then they decide, “You know what, we really need to have a tie-breaking vote there - 6 is just too confusing.” So they add a position and President Gillibrand appoints Merrick Garland. Nothing in the rules says they can’t do these things, so oh well, there we go, their actions were clearly just and fair, even if some folks might disagree with them.
Its actions are reviewable by the courts, though, specifically because the government was not intended to have a single ultimate authority, but rather a system of checks and balances.
It hasn’t been challenged so the fact that it happened doesn’t make it constitutional. I think you (and @Dan_Theman) are not getting what my actual point is, which is not that there’s some legal trick the Dems should be pulling to get Garland on the court, but that this move the Republicans pulled, which is fait accompli at this point, was not in good faith and that fighting against that does two things: 1) it potentially gets some form of remedy, if enough activist energy convinces enough lawmakers that such a remedy is necessary (note that this will not be withdrawing Gorsuch to put in Garland, but it could be committing to Garland as the next nominee or to a centrist nominee or some future standard for nominations that prevents this kind of partisan theft or something), and 2) it signals that the Democratic Party is no longer simply going to take the best deal it can get at the moment, but rather is willing to fight for the principles it stands for to get a future deal that more closely aligns with those principles. Since 2) is what the GOP has been doing since 2010, it’s not just theoretically a good strategy, it’s been shown to be effective. Let’s start moving the Overton window by standing firm on some of our true positions, rather than letting the GOP do that every time by making the compromise position our starting offer.
I know, and when I said “I get that you don’t care, and you don’t think the voters do either” I meant specifically about that point - you don’t care how he was kept out of office. I do, and I think many others do, including some sitting Senators.
Again, the point isn’t that they are compelled to act on a specific nomination within a specific timeframe per se, it’s that they are not allowed to circumvent the President’s right to appoint these positions, which was clearly the intent of their actions. This was not simply a case of them running out of time: they explicitly said they would refuse to act on any nominee and then did so.
Not to be overly pedantic, I don’t see that as circumventing his nomination and appointment. Rather, they didn’t advise and consent.
“With the advise and consent of your mother, you may go to the concert this weekend.” If your mom’s phone battery died and you can reach her, you can’t go. If your mom has laryngitis and is paralyzed so she can’t write or nod, you can’t go. If your mom decides to play the silent game just for kicks and giggles, you can’t go.
[quote=“ravenight, post:104, topic:128260”]
This is exactly what the court does in nearly every case it rules on: help to provide a clarifying principle by which future decisions in specific ambiguous cases can be judged.[/quote]
But this isn’t ambiguous. There is literally nothing in the Constitution about a remedy when the Senate doesn’t consent.
That’s like claiming that the Constitution is ambiguous about our right to free ice cream, so the Supreme Court may clarify that by imposing some rules about when we can have free ice cream.
Unlike freedom of speech or due process for the accused, there is nothing on which to base an interpretation. There is nothing there at all.
Well, yeah. Something is not an injustice just because it’s unfavorable.
What you propose might be hugely unpopular, though, and Democrats risk losing control over it. Or maybe not.
How about a counterexample: Suppose in two years everyone is sick of Trump. Republicans, Democrats, and Independents alike realize that he’s toxic and insane, and the GOP particularly wants to distance itself to avoid a bloodbath at the polls. Trump himself has furiously turned against the “bad hombres in the GOP”. Public disapproval has reached 90% after he starts and loses a war against China.
It’s time for a nomination. Trump nominates Ivanka Trump, and she is rejected. That’s followed by the nomination of Barron Trump. The Senate has had enough and says they will not consider him or any future nominations from Trump, and will instead wait a few years for the next president to fill the spot. The GOP has high hopes on a primary challenger winning Trump’s seat in 2020, so this has universal public support.
Is this unjust? I don’t think so. It uses a viable legal maneuver to reflect the will of the people by impeding an unpopular president. It’s a matter of checks and balances.
But if it’s just in this scenario when everyone is on the same side, then you have to admit it’s just whenever it’s used by our elected representatives. You can’t complain it’s only wrong when your party is in the minority.
Well, nobody thinks the GOP is acting in good faith. But doesn’t that contradict the rest of your argument? If we already know that the GOP will use every legal trick at its disposal to circumvent what you want, then there will never be a future deal that more closely aligns with our principles. Every future deal with be just as bad as this one, until Democrats regain power. So why on earth would you expect the GOP to agree to nominate Garland next?
In today’s episode, we take a long look at the judicial philosophy of “originalism” made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement.
First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services. Andrew gets a little emotional in his response….
Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary. Andrew’s argument is that originalists do not belong on the Supreme Court.
So Republican Senators all vote for or against doing the nuclear option when it comes time? I didn’t know that. I thought it would be a decision in the hands of the Senate leader.
[quote]And so the zinger was launched, that Gorsuch would have the truck driver freeze. Except that wasn’t remotely the gist of his dissent.
But, for the uninitiated, this is just kind of how conservative judges roll. His argument wasn’t that Maddin should have stayed there and froze to death, his argument is that the law provides no remedy for a trucker who needs to drive away to save his life. That’s a pretty standard conservative-jurist answer to, you know, problems in society.
Elie disagrees with this outcome, as would most people, as the trucker’s decision to save his life seems eminently reasonable under the circumstances. But Gorsuch’s rationale is similarly understandable, that while there should be law to provide the trucker a remedy, there is not, and he cannot create law that Congress has failed to enact because he is a judge, not a lawmaker.[/quote]
Now all that said, I think his dissent is bullshit, but if you take the law as written literally you can easily arrive at his conclusion. Again, I think that position is, ultimately, horseshit, but it’s just a more robotic approach to the law.
It does, but it also basically requires you to consider almost every possible scenario that could ever happen, which leads to tons of unintended consequences down the road, imo.
About 40 minutes after Supreme Court nominee Neil Gorsuch began his second day of testimony before the Senate Judiciary Committee, all eight of the justices he hopes to join said a major disability decision Gorsuch wrote in 2008 was wrong.
[…]
Under Gorsuch’s opinion in Luke P., a school district complies with the law so long as they provide educational benefits that “must merely be ‘more than de minimis.’”
“De minimis” is a Latin phrase meaning “so minor as to merit disregard.” So Gorsuch essentially concluded that school districts comply with their obligation to disabled students so long as they provide those students with a little more than nothing.
All eight justices rejected Gorsuch’s approach. IDEA, Chief Justice Roberts wrote, “is markedly more demanding than the ‘merely more than de minimis’ test applied by the Tenth Circuit.” Indeed, Roberts added, Gorsuch’s approach would effectively strip many disabled students of their right to an education.
[…]
UPDATE: Shortly after the Supreme Court’s Endrew F. decision came down, Sen. Dick Durbin (D-IL) asked Gorsuch about his now-discredited decision. Gorsuch defended his approach in Luke P., claiming that he was “bound by circuit precedent.” But Gorsuch is not correct.
Democratic Sen. Dick Durbin of Illinois had the opportunity to ask Gorsuch about the Supreme Court decision overruling him.
“Why, why in your early decision, did you want to lower the bar so low to merely more than de minimis as a standard for public education to meet this federal requirement under the law?” Durbin asked.
Gorsuch said, “If anyone is suggesting that I like a result where an autistic child happens to lose — that’s a heartbreaking accusation to me." Gorsuch said that he was bound by the 10th Circuit’s precedent, a 1996 case that set the standard for reviewing IDEA claims in that court.
“I was wrong, Senator,” Gorsuch said, acknowledging the Supreme Court’s Wednesday decision. “I was wrong because I was bound by circuit precedent. And I’m sorry.”
