Obama could try to appoint Merrick Garland to the SC without Senate confirmation

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   RJ Schwartzposted 8 years ago

   Obama could try to appoint Merrick Garland to the SC without Senate confirmation. Thoughts?
   
   As President Barack Obama’s efforts to pressure Senate Republicans to confirm Merrick Garland’s nomination to the Supreme Court fail, liberal White House allies are floating a trial balloon of installing Garland on the Supreme Court without Senate confirmation. For 227 years every justice has had Senate approval - how would this impact the balance of power in our government going forward?
   
   

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   Old Poolmanposted 8 years ago

   It is not that Garland would or would not be a good choice, it is this changing of the rules that is a concern.  To do this without the approval of Congress would be a declaration that the POTUS is now the Supreme Ruler and nothing else counts.
   
   I'm sure that Obama already feels this way himself and that would be proof to the rest of us as to how he views his role.  It will be very interesting to see if Congress even has the courage to fight such a move on his part.  To date, they have let everything else slide as if they were in total agreement with his decisions.  I am not at all clear on why they fear this President the way they do, but it is becoming very obvious.

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      RJ Schwartzposted 8 years agoin reply to this

      It sounds like the Senate is rock steady on not budging until the next President

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      Austinstarposted 8 years agoin reply to this

      And I hope that next president is another Democrat.

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      RJ Schwartzposted 8 years agoin reply to this

      I know you do - people's politics are pretty easy to see when having discussions of this type

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      promisemposted 8 years agoin reply to this

      Mike, a President does not need the approval of the Senate to make what's called a recess appointment. It has been done many times over the course of U.S. history including two by Eisenhower.

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      RJ Schwartzposted 8 years agoin reply to this

      But Scott, if the Senate doesn't recess, the sitting President cannot proceed with a recess appointment.

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      promisemposted 8 years agoin reply to this

      Ralph, I don't disagree it may be theoretically possible for the Senate to avoid a recess. But it requires a quorum and means they cannot take even a single day break for the remainder of the year.

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      RJ Schwartzposted 8 years agoin reply to this

      Actually the law allows for breaks up to 3 days but no longer to be considered in session

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   Austinstarposted 8 years ago

   If it is within the constitution that a sitting president can appoint a SCOTUS, then I would approve of him doing so.
   The current Congress and Senate are on record as stating that they will do anything in their power to obstruct any power that our current president has. They are doing so entirely out of spite and malice. They have gone on record as saying that they will obstruct any legislation that Obama proposes and that they will try their best to nullify anything that he signs or approves.
   I, for one am sick and tired of our elected officials not doing their jobs. They have the audacity to take our tax money and produce zero value for it. They live off the public tit and blatantly disregard the welfare of the citizens of the USA.
   When are the voters going to wake up and fire all of the obstructionists and war profiteers and big business interests that are effectively running our country?

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      RJ Schwartzposted 8 years agoin reply to this

      The Senate is acting within the rules and as I always like to say what if the roles were reversed, would you still feel the same way?

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      Austinstarposted 8 years agoin reply to this

      Yes, I would. I would protest as I did when G.W. went to war with Iraq which I knew was a very bad idea. But I support the legal decisions that our government makes or else I wouldn't live in the USA

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      RJ Schwartzposted 8 years agoin reply to this

      We're not discussing George Bush in this thread - would you be OK if an outgoing Republican was picking a nominee, Joe Biden wasn't.

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      Austinstarposted 8 years agoin reply to this

      I just gave it as an example because you asked me if I would still feel the same way.

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   lovemychrisposted 8 years ago

   That would not be a good idea. On the other hand, they are derelict in their duty.....going on 8 years,now! Now we all know why they are derelics. Maybe he can claim THEY are obstructing the constitution,  which they are, and he needs to act on behalf of it.
   
   Actually, I'm liking that idea....since they are leaving us without a sc, maybe he can lawfully go around them!

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      RJ Schwartzposted 8 years agoin reply to this

      Nothing in the Constitution requires the Senate to act on a nomination, nor is there a time table, nor is there any provision to waive the Senates confirmation power.

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      Austinstarposted 8 years agoin reply to this

      But doesn't the Senate have an obligation to do their jobs? Just do it. If I said I wasn't going to do my job which would be to hold a hearing, I would be fired.

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      lovemychrisposted 8 years agoin reply to this

      Lol, I bet that would change if the situation were reversed. So then, if repub makes prez, dems can obstruct. And im sure you'll be just as sanguine. Yeah suuurreee

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      RJ Schwartzposted 8 years agoin reply to this

      Seriously ?  Both parties obstruct.  It's called politics

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      lovemychrisposted 8 years agoin reply to this

      Oh no. Not  like this. But you know dems cant. House and senate is repub. They want prez and supreme court, too. This is democracy? Hardly. House is rigged, suppressing votes, want it all...again. Not America, UAE more like. Dictatorship.

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      RJ Schwartzposted 8 years agoin reply to this

      Reminds me of when Harry Reid refused to let legislation through.  It goes both ways

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      lovemychrisposted 8 years agoin reply to this

      There is no comparison to what these republicans have done. None. They have made it their job to ruin a presidency. $176,00 and more a year to make sure nothing gets done. Like Austin alluded to, they should be fired. Should make amendment to do so!

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      RJ Schwartzposted 8 years agoin reply to this

      You can't call out one party as worse than the other - When Reid triggered the nuclear option to change senate rules - obviously obstructionist tactic - double standard

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      promisemposted 8 years agoin reply to this

      Yes, both parties obstruct. But when the GOP controls both houses of Congress and can't even get a budget out of the House, I believe the evidence is pretty clear that it has taken obstruction to a new level.

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       lovemychrisposted 8 years agoin reply to this

       No kidding.150 nominations are sitting in limbo-waiting for a repub prez,no doubt. I'm pretty sure this is not what the framers had in mind, or they wouldn't have bothered to say all men are created equal. "Unless you're a democrat" is not qualifier!

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   lions44posted 8 years ago

   If I was a Senate Republican, I would vote for Garland ASAP. Why?
   
   1. It takes away a campaign issue from the Dems. Because my party loses the media/PR war all the time, expect to have months of "obstructionists," "fanatics" and the always classic "they're just mean," said night after night on every cable/news show.  We fall into this trap all the time.  Being media savvy is a skill sorely lacking in GOPers.   Having long, drawn out discussions about constitutional responsibilities does not help us. We may be right, but elections are won on sound bites, imagery and gaffs.  Discretion on this matter may help down the road.   It won't help in 2016, but it might in 2020. 
   
   2.  The alternative might be a much younger left wing judge who will be making decisions for the next 25-30 years.     
   
   The chances of winning this election are slim and none. For once, let's stop playing into their hands.  Call the President's bluff and confirm the guy. 
   
   Put it this way, Ralph. Let's say you and Leslie were outside the SC building.  A reporter comes up to the both of you for an interview.  Leslie says, "They are derelict in their duty."  You then respond with a very measured answer, " It's about the Constitution."   What sound bite makes the news?   You know the answer.   
   
   It's hard out there for a Republican.  Let's start turning it around.

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      RJ Schwartzposted 8 years agoin reply to this

      Great answer, plus I think that several justices will be retiring in the next four years, so it might be a totally mute point.

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      lovemychrisposted 8 years agoin reply to this

      But is IS about running our country, something that has been stalled for 8 years due to political sour grapes. (another good sound bite)

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      promisemposted 8 years agoin reply to this

      "The average duration of the 15 Supreme Court vacancies since 1970 has been just over 55 days." - Pew Research
      
      If it is not filled by Obama, it will be at least the second longest vacancy and possibly the longest in nearly 200 years.

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      RJ Schwartzposted 8 years agoin reply to this

      There have been 10 vacancies lasting over 300 days, with the longest being 841 days. Lengthy vacancies are rare now, but in the past were very common.  Pew Research

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      promisemposted 8 years agoin reply to this

      Point well taken. It would have been very difficult 200+ years ago to fill a position quickly because of travel distances by horseback and much shorter congressional sessions.

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      lovemychrisposted 8 years agoin reply to this

      Well, the fact they're doing it as a power play proves they're working for themselves, not we the people. They have rigged districts, put in laws that restrict voting, and now are stalling confirmation. All so they can have another 4-fecta. Big bums.

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      RJ Schwartzposted 8 years agoin reply to this

      This thread has inspired me - I just posted a hub on this topic - I have been fact finding all morning.  It's non-partisan and shows similar events from the past - please take a look and share an opinion if you wish to

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      lovemychrisposted 8 years agoin reply to this

      If this is how we govern, we need a new way. I really really think we need to split up. It's absolutely ridiculous to have to fight to live your life. North, south, red, blue. I don't care how it's done, it needs to he done.

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   dashingscorpioposted 8 years ago

   
   
   The president's job is to nominate replacement judges for the Supreme Court. Obama just did his job according to the constitution.
   It's the senate's job to hold a hearing to confirm the guy or {vote no}.
   Any pressure the senate may feel is reflection of gridlock politics.
   Prior to Merrick Garland's nomination he had a 90% approval rating among Republicans in the senate when he was chosen as chief judge of the United States Court of Appeals for the D.C. Circuit.
   What changed? {Obama} nominated him that's all it took.
   For a lot of people if Obama is for anything they're automatically against it! Immediately after Obama was sworn in Republican leadership made it known they were going to do everything in their power to make him a one term president.
   Then 2012 came along and the people reelected him.
   Since then the new agenda is to stall everything or say no. Apparently the goal is not to do anything until a Republican elected president. This gridlock may go on for another 4-8 years!
   Whenever you take things to the extreme where people know you liked something yesterday but now you claim to dislike it just because of (who) is suggesting it today; it does put you in an awkward position.

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      lovemychrisposted 8 years agoin reply to this

      Bingo! They want another full monty, like 2000-2006. I feel as if my vote has been nullified, and wish there was a provision in the constitution to deal with it.

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      promisemposted 8 years agoin reply to this

      "Advise and consent" does not mean stall for a full year while the Court has a series of 4-4 votes that accomplish nothing for the country.

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      RJ Schwartzposted 8 years agoin reply to this

      Yet the broken system allows something like this to go on - I don't like it when people blame one party or the other on these matters - unless the actual law is changed, it will continue.

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      promisemposted 8 years agoin reply to this

      I agree that the system is broken and that both parties have a responsibility to govern. As a former Republican, I believe the Republican party has been more obstructionist than the Democratic party in the last seven years.

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      RJ Schwartzposted 8 years agoin reply to this

      Obstructionism is a broad brush Scott

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   promisemposted 8 years ago

   Ralph, your question contains a major factual error.
   
   Since 1789, sitting U.S. presidents have submitted 161 nominations to the Senate. Out of that total, there have been 12 recess appointments. The most recent was William Brennan who was appointed by Republican president Dwight Eisenhower.
   
   Most recess appointments eventually get confirmed -- long after they are appointed and when enough senators can be lined up to vote in favor.
   
   But it's a moot point. Obama has said repeatedly he won't make a recess appointment.

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      promisemposted 8 years agoin reply to this

      Eisenhower also used a recess appointment for Potter Stewart.

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      RJ Schwartzposted 8 years agoin reply to this

      Of those 12, 11 were confirmed by the Senate within a reasonable window, only 1 (200+ yrs ago) was rejected.  I see your point, but wouldn't characterize it as a major error.  Thanks for the input though - I'm always open to learning!

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      promisemposted 8 years agoin reply to this

      My point is that Presidents make appointments without Senate approval. The Senate can certainly do a token approval months after the appointment or take "no action". Likewise, I'm learning as well!

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      bradmasterOCcalposted 8 years agoin reply to this

      Based on the SC today, it no longer functions without prejudice, and political ruddering. The country today has morphed way beyond the aspirations of the founders. The founders erred in giving congress the job of detailing the SC. FDR had 15 SC justi

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   bradmasterOCcalposted 8 years ago

   My answer is an alternative to the ?, but I think it is relevant.
   The 9 jurists SC is an odd number to reduce the possibility of ties, but that is not as bad as 5-4 decisions.
   
   Having an even number of jurists will show America what real SC decisions should look like. The SC is not compelled to answer lower court decisions, or issues. In fact, the SC works on the theory, or at least that was the plan, to throw away the multitude of cases coming before it because the SC decisions became the law of the land.
   
   With the 8 jurists SC, this plan will be better enforced, and it forces the 5-3 decision which has to be a better decision. And a 4-4 decision just throws the issue back to the lower courts. Having a law of the land decision based on a single jurist vote is not conclusive enough to make that kind of decision. If you look at all the 5-4 decisions of the SC you will notice that they didn't really resolve the decision before the court. Why, because you really shouldn't discount the opinion of 4 SC justices when the decision is so important to the country and the people.
   
   If I left the road too far way, delete away.

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      RJ Schwartzposted 8 years agoin reply to this

      Not at all Brad - in fact you bring another layer of sanity to the discussion.  I think the 4-4 takes away the partisanship angle.  Check out the hub I wrote on the Supreme Court yesterday if you get time.

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      bradmasterOCcalposted 8 years agoin reply to this

      Ralph
      
      Another good one. I put my spin on it, of course it went off your well paved road. Keep them coming.

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   Don Fairchildposted 8 years ago

   Invalid argument, this question is NOT Constitutionally possible.  Appointments require a confirmation.

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      RJ Schwartzposted 8 years agoin reply to this

      Sorry Sir, but you are incorrect.  A recess appointment can be made and as long a the Senate confirms before the end the session  it can stay  http://hubpages.com/politics/The-Supreme-Court

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