Maybe Ilya Shapiro over at The Federalist is just desperate for attention. I don’t know. But he’s advancing an idea that probably will be taken fairly seriously in conservative circles come next year. Shapiro says that it would be “in keeping with the Senate’s constitutional duty to vote against essentially every judicial nominee [President Clinton] names.” He also says “if a majority of senators refused to confirm anyone to any offices, or pass any legislation whatsoever, that’s their prerogative. As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.”
Shapiro doesn’t parse the difference between blocking nominations and bills with a majority versus with a minority (via the filibuster), but he’s surely right that the Constitution doesn’t require elected officials to vote for anyone or anything.
Of course, President Obama nominated Merrick Garland to the Supreme Court many months ago and no one has cast a single vote for or against him, even procedurally. It’s uncontroversial that senators can vote against a nominee. It’s understood that the filibuster is an established device that can be used by a minority in the Senate to block a vote. What’s controversial is the idea that committee chairmen would deny nominees a hearing and at least a vote in committee on whether to recommend those nominees to the full Senate.
Shapiro isn’t saying that Garland or all of Clinton’s nominees are morally unfit to serve. He’s saying that they’ll rule in a way that he doesn’t like.
I think we’re talking norms here rather than about what the Constitution explicitly requires. It seems like the idea of letting “the Supreme Court die out, literally” is a good place to examine this question. If, for some reason, a political party decided to never confirm anyone new to the Supreme Court, eventually it would have no members. They could also refuse to appropriate any money to the Supreme Court and kill it that way. I think it’s fair to say that the Constitution implies that this should not be done. But, of course, the Supreme Court has no obvious way to defend itself from these kinds of attacks. The Executive Branch can veto any spending bills that don’t fund the judiciary, but they can’t force the Congress to keep the government open and funded.
It’s ultimately up to the voters to replace a party that wants to behave this way. And I think that’s what they’d do.
The advise-and-consent function of the Senate also means they could refuse to confirm any Cabinet appointments, too, correct? That would be a nice way to grind the executive branch to a standstill.
Once “blow up the government” becomes a political party’s reason for existing, the sky’s the limit.
Sadly, I don’t see Republican voters considering such actions a down-side. In fact, I think they’d like it. They would, of course, continue to rant and blame all ills in this world on President Clinton. That goes without saying.
So, as usual, hold onto your hats, my friends, because we’re in for a bumpy ride.
I saw another recent article from the Federalist.
The gist of the article was that there was a way to fix the Trump problem called “Elect-and-Impeach”. The plan is to elect Trump, then immediately impeach him and seat Mike Pence, certified Christian man of purity, in the Presidency. Thank you, Constitution, Easy Peasy!
What can you say? The wingnuts are so convinced that they are fighting a last stand battle for the future of freedom that they can justify anything.
I can’t wait until the try to impeach Hillary.
All the more reason to work for a Democratic majority in the Senate, although filibusters will still cause problems for legislation (to say nothing of a GOP-controlled House).
If the Dems don’t kill the filibuster, they’re worthless.
Weren’t Repubs already gaming out some SC stacking to reverse a liberal court?
Of course, the overall trend is to privatize the justice system, too, so maybe we should not be so surprised.
And some people refer to the conservative Teabagging Republicans as nihilists.
Imagine that.
I know. Who’da thunk?
If I am not mistaken, a simple majority of the Senate sets the rules for the Senate session at the beginning of the session, which is two years.
It seems to me if Democrats have 50 0r 51 seats, they can foreclose this possibility by requiring a simple majority for approval of appointments, period.
But it requires a majority, which should be possible this year. If perchance some of the obstructionist Senators, say Grassley, lost, that might be another effective brake on this change of norms.
It would certainly be worthwhile to test how far Iowans want to go with obstruction. And then campaign accordingly.
Will this be remembered as the Republican Court-Unpacking Plan of 2017?
Of course the logic of letting the supreme Court die out is that there would then be almost no brake on Executive power. President Clinton could issue whatever executive orders she wanted and there would be no one to declare them unconstitutional.
All the lower federal appellate courts would still continue to exist and Repubs could easily get one of the “conservative”-controlled circuits (most likely the extremist 5th) to rule that the Dem prez has abused her power and block the action. With a deadlocked Supreme Court, there’s no final say, no ultimate arbiter.
I suppose we could have a patchwork situation where her executive order would apply in some circuits but not others, if another circuit held the action constitutional, but I doubt the circuit judges as a body would want to entertain that possibility.
Also, people seem to forget that the current 4-4 tie on the Supreme Court simply isn’t going to last forever—one of these extremely elderly justices is simply going to drop dead, ala Scalia. Should it be Ginsburg or Breyer, then Roberts has a 4-3 Repub majority and he’s back in business.
As I say, the United States is on the verge of a major constitutional crisis, unfortunately the citizenry is blithely unaware of it. Not a good time to invest in “USA! USA!”, ha-ha…
Hypothetically, in “the Constitution is not a suicide pact” tradition, the surviving Supreme Court justices (or justice!) could reinterpret the “advise and consent” language as defaulting to acquiescence if the Senate does not act within XX days on a presidential appointment. That’d be Step 1.
OK, then the Republicans could decide to vote against every presidential nominee. Step 2, the Supreme Court could hypothetically establish further “advise and consent” rules, for example retaining the XX days inaction restriction but adding a Y nominees limit, with the nominee winning the greatest number of Senate votes becoming the new justice (or other government official). For example, if XX is 60 and Y is 3 then the Senate wouldn’t be able to keep the post vacant for longer than about 180 days (assuming a speedy president). If the Senate refused to vote then that would be acquiescence, and the post would be filled in 60 days. If the Senate voted down every nominee then the highest vote getter (or the first nominee if there’s a tie vote) would fill the post, and that would take 180 days.
None of these provisions are written in the Constitution, of course. But the Supreme Court has such power. I’m sure the Supreme Court would prefer never to think about such hypotheticals much less act on them, but I also doubt the Supreme Court would fail to turn the lights back on if only three or fewer justices were still donning their robes.
If you’ve nodded your head and bought into the XX/Y construction as a hypothetical, unfortunately there is a Step 3 hypothetical. Congress (both houses) could impeach the President and remove him/her from office — for any reason or no reason at all. Including for filling vacant posts through this hypothetical XX/Y rule. Then remove the Vice President (the new President), then elevate the Speaker of the House to the presidency. Or Congress could impeach and remove from office the justice or government official that just cleared the XX/Y rule, forcing the post to be vacant again. (Then is there a Step 4?) Many constitutional crises are possible when there are enough lunatics. The U.S. has a written constitution, but the U.S. government functions reasonably well because its actors adhere to many longstanding behavioral norms. Yes, I hope voters’ potential 2018 wrath is enough to keep a Republican House (and possibly Republican Senate) in check, but the Republicans are likely to test the outer limits, again. It could be a very, very rocky few years. I hope the U.S. Mint has a $5 trillion platinum coin on standby.
No way. The Senate is within its rights not to confirm. Period.
Ok but could the treasury simply not pay the senators?
These lunatics truly have no use for or appreciation of democracy. It’s raw power pure and simple. No wonder they adore Putin.
I’m sorry but this is all just sedition; the Supreme Court plan is arguably treason.
Here is a list of the political consequences the GOP has paid for its obstruction:
There is no evidence this cuts with the voters.
Sadly, it will cut it with some voters. And their representatives control most states and hold congress.
To what extent have the Dems ever made the unprecedented Repub obstruction a campaign issue?
A constitutional crisis is brewing and I submit that the rubes don’t even know about it.
“I think it’s fair to say that the Constitution implies that this should not be done.”
I think it’s fair to say that the Constitution stipulates three branches of government, and did not envision that one branch should has the right to see to it that another branch would wind up with no members.
Maybe the Constitution assumes that the players act in what might be called good faith. Obviously the omniscient framers never thought of us today. So could it be that the Constitution is, in fact, outdated? Can you imagine that?
The funny thing is, they did not assume that. That’s the whole idea of checks and balances. See Federalist Papers No.51.
http://www.constitution.org/fed/federa51.htm
I come to a different conclusion. It is that these ass-clowns are committing sedition, defined by Webster as “the crime of saying, writing, or doing something that encourages people to disobey their government.” Because they are acting against the constitution.
For that, we cannot blame the constitution. Unfortunately, there is no law, even the most perfect, that cannot be broken.
So that,would be treason. Can we put,them in jail?
You can’t put them in jail without a legal process. I would like to hear how lawyers might draw up the writ (if it is possible). I don’t know if this is actually sedition, but it’s some kind of refusal to honor their oath of office at the very least. I would think it centers on their categorical refusal to grant hearings to presidential nominees. That is dereliction of the senate’s “advise and consent” function.
The Constitution specifies that members of Congress “shall be bound by Oath or Affirmation to support this constitution.” Every senator swears the following on coming into office: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
It’s the “well and faithfully discharge the duties of the office” that they’re playing around with.
But IANAL.
Yes, the people with power are at fault. Maybe you’re right. They swear to uphold it and they don’t. Are they lying? Or has it become impossible to uphold a document from more than two centuries ago. We have constitutional lawyers for that, like Barack Obama and Ann Coulter. Take your pick. If the people in power ignore the constitution, it’s dead in the water. Like the Jewish and Christian books. Nothing in human history has been commented on and annotated more than those two books. But if no on believes in them any more they’re no more than historical curiosities. Just the whole waltz around the second amendment should be enough to make people doubt: what is the meaning of a late 18th-century comma?
We’ve really crossed over into pure treason territory with this trial balloon to block all Supreme Court nominations. The Republican Party has become a complete cancer on the Republic. I would never have believed this possible had I not seen it happening. As a lawyer, and an American citizen, I am utterly appalled.
What is wrong with these people? When did they start rejecting democracy root and branch?
It isn’t new. Never in the history of this country have conservatives believed in a democracy in which everybody gets a vote, not just the “right” people.
Yeah, they crossed over into treason a long, long time ago.
The GOP attitude towards election results and governance increasing resembles a high-conflict, litigious divorce. In other words, I’m not going to do anything I’m not absolutely forced (repeatedly) to do, and I will make your life miserable getting there.
The question is, who is the GOP divorcing itself from? Governance? America? Reality? All of the above?
Jeez, this is a great metaphor for what today’s GOP leadership is doing- an emotionally intransigent and litigious divorce.
Art III states that “the judicial power of the United States shall be vested in one supreme court…” The Supreme Court is the only federal court mandated to exist by the Constitution. To say that senators have the power/right/whatever to “let the supreme court die” is clearly an incorrect reading of the Constitution and betrays an actual hatred of the Founders and the Constitution–which is where the American “conservative” movement has been for quite some time.
Of course, today’s Repubs, should they retain their senate majority, will absolutely refuse to confirm at least a majority of Clinton’s proposed cabinet officials, and all her lesser nominees. They have already let the cat out of the bag on her supreme court nominees.
As the polls increasingly make clear that we are on the verge of a massive constitutional crisis (a senate majority which will not accede to the power of a Dem prez), the stakes must be at least made known to the ignorant, low-info, pigheaded voters who are on the verge of bringing it on. It is cretinous to cast Clinton/Toomey, Clinton/Rubio, Clinton/Ayotte and Clinton/Heck ballots. if you do so, YOU have brought on the certain Constitutional Crisis of 2017.
HRC had better stop with the fundraising tour and give a major speech about Repub obstruction, the power of the senate, the history of obstruction by today’s Repubs and their stated plan not to confirm her nominees (since she is a criminal who should be in jail, after all). And then she better do nothing else except demand that the “lib’rul media” talk about nothing else. The rubes must be told what they are about to do. This isn’t about whether Toomey seems like a nice man and Ayotte a nice lady.
The only “solution” to the crisis will be a Dem prez who governs with Repub appointees. If HRC thinks she’ll look good doing that, she is sadly mistaken. Even she will sicken of this game.
The “conservative” movement is on the precipice of their long sought goal—the complete destruction of the federal government and complete humiliation and destruction of a Dem prez. Only a few “independent” voters in FL, NV, PA and NH can save the country now. The question is, do they have the intelligence to do so? As it stands now, they don’t seem to know what they are about to do.
And if they are about to do it because they think this makes sense for the country, then we are surely doomed….
Sounds like you think what the nut bags are up to is nullifying the Constitution? I will include in that some on the left as well. They have already shown their willingness to shut down the government and not pay our debts. So if the congress does its worst, not fund the government and refuse to appoint justices, what then? Would that entitle the President to assume the powers and simply discharge them all?
Clearly if this were the waning days of a Gramps McCain second term or the end of Rmoney’s first term, there would be no crisis and a justice would have been confirmed months ago.
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