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Originally Posted by nononsenseguy
No, it's not "just too bad." The Senate does not have to confirm the President's pick if they don't like/agree with how he has ruled on cases. They are not a "rubber stamp" but are to carefully consider, and then accept or reject. They aren't tied to any timetable either. They may choose to not bring it up, and they are perfectly within their rights to wait till the next President is chosen. That is their right under the Constitution.
What's "just too bad" is that YOU don't understand the Constitution.
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Exactly. The Constitution specifies no requirements for any appointee to the judicial branch; the President can appoint anyone he/she chooses. Of course, the Senate is under no obligation to vote for or consider any appointee.
It should also be pointed out that vacancies of much longer than 11 months have been thought of as perfectly legal throughout the history of the Court, and there is no legally specified timetable for voting on or voting for an appointee. Under any reasonable reading of the law the Senate has the unquestionable legal right to consider appointees at the time of its choosing unless it is completely unreasonable, such as multiple elections in the future or flat-out never considering an appointee. Waiting until after the next general election when it is much less than a year away is both legal and prudent, and supported by prior precedent (see 1828 below).
To those that bellow that it would be unprecedented in recent history, I'll offer a little history lesson. The last time there was an election-year vacancy* was 1956, and that was not a competitive election; there was little point in putting it off since Eisenhower's re-election was very likely. It was also a retirement rather than a death, and the appointee was an uncontroversial figure; the only objections to his confirmation flowed from McCarthyism, and only McCarthy voted against him.
Before that the last election-year vacancy was in 1932, when Oliver Wendell Holmes retired (i.e. he didn't die). Hoover appointed Benjamin Cardozo, who was a universally beloved jurist, and he sailed through confirmation.
Before 1932 we have the 1916 case, oddly exactly a century ago, where there were actually two election-year vacancies. Joseph Rucker Lamar died in January and was replaced by Louis Brandeis. Brandeis was a very controversial appointment, eliciting opposition from anti-Semites and those politically opposed to his "radicalism". This would make an excellent precedent for our situation were it not for the fact that there was unified government - Democrats controlled the Senate after the 1914 elections, so it is not comparable to the current divided government situation.
The other vacancy opened up upon the resignation of Charles Evans Hughes to run for President that year, and President Wilson appointed John Hessin Clarke, who was uncontroversial and was confirmed unanimously by the Democratic Senate. Hardly comparable to what we're dealing with.
The previous one was in 1892, when Joseph Philo Bradley died and President Harrison nominated George Shiras to replace him. Again, though, we didn't have divided government in this case.
In 1888, quite a competitive election year, Morrison Waite died, and we had divided government. President Cleveland nominated Melville Fuller to replace him, and he was a controversial figure. The Senate did confirm Fuller, though. This is the last time we were in a comparable situation to 2016 - a Supreme Court Justice dies in an election year expected to be competitive with a divided government.
Prior to that there was the death of Roger Taney in 1864, but control was unified then. Before then it was 1828, when Robert Trimble died in the summer before one of the most competitive elections of all time under a divided government. The Senate outright refused to confirm any appointee from John Quincy Adams and confirmed John McLean, Andrew Jackson's nominee for the seat, after he was inaugurated the next year. This is the other time we were in a situation comparable to where we are in 2016.
Before that there was an election-year vacancy in 1800, a competitive election, but due to retirement rather than death, and there was unified government. Oliver Ellsworth retired and the Senate quickly confirmed John Adams's pick of John Marshall before they had to leave town. Before this there were a few election-year appointees by George Washington but government was unified then and none of the election he ran in were competitive.
So we have had two times before now when the situation was analogous - 1828 and 1888. In 1828 the Senate ran out the clock on the incumbent President, and it was widely considered to be within their powers to do so at the time. In 1888, on the other hand, the Senate voted on and confirmed the President's appointee. It should be noted, though, that the modern Supreme Court and Senate hadn't evolved yet as of 1888, let alone 1828.
*As in a vacancy that occurred during an election year. Anthony Kennedy's confirmation doesn't count since the vacancy opened up in 1987 (rather than 1988) and neither does Frank Murphy's since the vacancy opened up in 1939 (rather than 1940).
Quote:
Originally Posted by yeahboy79
THey probably would try too...that doesn't make it right. This is where the chips fell. Scalia was not going to schedule his death so we might as well deal with it. Obama making a nominee and congress voting on it is the right and sensible thing to do....neither of which congress has so that's why this is going to be a circus.
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Again, the trump card the Senate has in this game is that it can consider a nominee at the time of its choosing, which by a plain reading of the law plus multiple prior precedents of longer vacancies does not have to be within a year. There are multiple good reasons for doing so, not the least of which is giving the American electorate the opportunity to decide who they want the vacancy to be filled by rather than letting a lame-duck (yes, lame-duck; the campaign is well underway) President and Senate pick it out. That way there will be a higher chance of an objectively superior outcome.
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Originally Posted by GreenGene
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The Senate could easily stay in session pro forma to prevent such an appointment from becoming legal.
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Originally Posted by phetaroi
And then the Senate should do its job and vote.
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The Senate is not here to take orders from the executive branch, and is under no obligation to do so. Part of their "job", as you put it, is deciding what
not to consider or vote for, and in what you might call their "job description" (the Constitution) there are precious few things they are
required to do. Voting on or for Presidential appointees within a year is not one of them.
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