1905 Precedent Allows Obama to Appoint SCJ without Consent
1905 Precedent Allows Obama to Appoint SCJ without Consent
Saturday Feb 27, 2016 
Republican President Theodore Roosevelt: "the Constitution did not forbid my doing what I did."
After having recently read through a few of the mostly Conservative and Mainstream Press pieces explaining why Senate Republicans can legally stop President Obama from filling the SCOTUS vacancy, I decided to search for myself, and discovered an 1905 precedent by Republican president Theodore Roosevelt that actually allows Obama to appoint an Interim Justice until the Senate formally either consents or reject his appointment. But before getting to the precedent, let’s review the basic Constitutional facts.
According to this wiki page , the phrase “Advise and Consent” is used only twice in the U.S. Constitution, both instances appearing in the same sentence in Article II, Section 2, paragraph 2, where it states:
[The President] 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.
We notice that while a president’s power, by and with Advice and Consent of the Senate, to make treaties, requires a full two thirds of the Senators present to concur, the president’s similar power to appoint Judges of the Supreme Court requires only the Advice and Consent of the Senate majority. The first key point here is that a president’s power to make treaties is more severely constrained by the Constitution than is his power to appoint Supreme Court Judges.
Now let’s look at the precedent. According to this wiki page on the Treaty Clause, in 1905, President Theodore Roosevelt, a Republican, negotiated a treaty without Senate Advice and Consent for a full two years before the Senate finally rejected the action. Roosevelt, on page 510 of his 1913 An Autobiography , details his actions and his reasoning as follows:
The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo . But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.
For more on the context of Roosevelt’s actual agreement, see page 110 of this link.
While “In 1972, Congress passed legislation requiring the president to notify Congress of any executive agreements that are formed,” this legislation is not relevant to the appointment of Supreme Court Judges, because, as the above section of the Constitution shows, there is a substantive legal distinction between an Advice and Consent 'appointment’ and a 'treaty,' 'compact,' or 'agreement.'
So, President Obama’s legal right to appoint a Supreme Court Judge without Advice and Consent of the Senate, being founded on an actual historical precedent by President Theodore Roosevelt that applied to the more stringent Constitutional guideline for treaties rather than non-legal nor binding statements Republicans have of late referred to as “Biden Rules” and “Schumer Rules,” is actually a far stronger, more Constitutionally-protected, right, than the Republican Senate’s right to not even consider granting Consent to a potential Obama Supreme Court nominee. Again, we can simply apply Roosevelt’s statement, “The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo . But the Constitution did not forbid my doing what I did,” to the less stringent Constitutional guideline for appointing Supreme Court Justices, and President Obama has more than enough legal justification to make the appointment, and leave it to the courts to decide whether or not his appointment is Constitutionally protected.
The second key point here is that the U.S. Constitution makes no further statements about the matter, leaving any additional interpretation entirely in the hands of a Federal Court hearing that has not yet taken place. And so, according to the 1905 “Teddy Rules,” President Obama has the Constitutional right to first appoint a Judge to fill the present SCOTUS vacancy, and then wait, as did Roosevelt with his treaty, to see what the Senate decides to do.
For those somewhat squeamish within our ranks who worry that there might not be “enough” precedent for Obama to go forth on this with a clear conscience and sufficient legal backing, recall how for many decades precedent was fully on the side of limiting campaign donations, until the Republican-led Supreme Court upended that precedent with Citizens United. Or recall how the 2000 Republican-led Supreme Court stopped the Florida vote recounting process when it became apparent to them that Democrat Al Gore would defeat Republican contender George W. Bush unless they stopped that recount.
Let’s now enumerate the inevitable steps in the process outlined above, if it is carried through to its end without Republicans first deciding to cave on giving Obama’s nominee a fair hearing and vote.
1. President Obama, using the 1905 Roosevelt action as his legal precedent, appoints a new judge to fill the present vacancy. The Judge is formally seated with the other eight judges, and the new nine-member court now has a balance of power of 5-4 in favor of the Democrats.
2. A friendly suit is initiated in a jurisdiction whose Appellate Court is presided over by a majority of Democrat judges, and this Court affirms, based on the Senate’s having clearly acted in bad faith, and on the Roosevelt precedent, Obama’s appointee,
But will Republicans ever let that happen? I doubt it. What will most likely happen is that upon even hearing that President Obama is contemplating such a series of moves, Senate Majority Leader McConnell will quickly cave, and agree to give Obama’s nominee full consideration with an up or down vote before the full Senate. But unfortunately for the Republican Party, that is only the beginning of the Republican-led Senate’s problems.
The reason is that it takes 3/5ths of the Senate to end debate on the confirmation or rejection of a Supreme Court Justice nominee, so if President Obama were to nominate someone the Republican Senate has already recently confirmed, like, for example, our black woman Attorney General Loretta Lynch -- the litmus test being that his nominee can be counted on to reverse Citizens United and all similar rulings – While Republican Senators might wish to speedily confirm or reject her so all of their attacks are not presented live to millions of viewers day after day after day, our Democratic Senators can decide to keep the hearings open for two, or three, or four months, granting a captivated national audience ample opportunity to see for themselves what a corrupt mess the Republican Party has devolved into, and why it is absolutely imperative to both elect a Democrat president and to give the Democratic Party the four seats we need to win back control of the Senate this November.
One last very important point; We here on Daily Kos can make the Republicans cave without President Obama ever having to say a word or lift a finger on the matter. All we have to do is plaster the Internet with this “Teddy’s Rules” threat, and it shouldn’t take long for Mitch McConnell to insist that President Obama expedite his nominee selection so they can get on with the Consent hearings and votes.
So, share this diary through a link, copy and paste the above with my permission anywhere you’d like, write your own piece affirming that the Roosevelt 1905 precedent allows President Obama to appoint a Judge to fill the current SCOTUS vacancy, and wait for the Republican-controlled Senate to very soon thereafter miraculously come to its senses.
http://www.dailykos.com/story/2016/2/27/1492350/-1905-Precedent-Allows-Obama-to-Appoint-SCJ-without-Consent-Corrected-Version
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Okay - Here's a little something to get the blood pumping this morning. Where are all my historical and constitutional buffs.
Have at it NewsTalkers!!!
I suggest you read Marbury vs Madison decided in 1803.
Set the precedent on federal court appointments. A judge does not become an actual federal judge on any level until he actually has his approved appointment warrant in hand. (actual proof of delivery and receipt is required to hold the office)
President Adams leaving office for President Jefferson attempted to pack the newly expanded federal judiciary with Federalist judges Jefferson and Madison (Madison = Jefferson's secretary of state) refused to deliver the signed warrants of appointemt, thereby Marbury was not and never was a federal judge. Even though while the case was being decided he was allow to be a judge while the issue was resolved.
Applies to all levels of the federal judiciary including the Supreme Court.
Nomination, Consent of the Senate, Appointment. That is how the process works. the first major precedent in American Jurisprudence.
He could no more appoint an interim SCJ to sit on the court than I can.
The depth of thinking on this one means they are looking for any means possible to get around the Senate.
Not if they obey the law.
This was some far out thinking though. Amusing.
Thanks NWM for the source!
My pleasure.
This was some far out thinking
That's what I thought as soon as I read the title. LOL!
This was some far out thinking
That's what I thought as soon as I read the title. LOL!
This is why it's impossible to get republicans, particularly McConnell, to comment on the issue right now. Reporters cannot get an answer because these politicians are always too busy to be interviewed, even when they are clearly not to busy to be interviewed.
Good luck with this. There's a reason it was found on the dailykos.
theres a clause in the Constitution that deals with vacancies to appointed positions. It controls.
theres a clause in the Constitution that deals with vacancies to appointed positions. It controls.
I won't argue your point on where the article originated from. My purpose was to stimulate debate and I thought this would get some of you guys going.
It's probably redundant to note that Mr Ortega hasn't a clue what legal precedent actually is.
He's claiming that a presidential executive order to put a treaty into effect administratively pending of Senate approval is legal precedent. Of Course, it isn't, in any sense whatsoever.
And the court is the sole determiner of courtroom procedures the same as the administration is the sole implementer of federal regulation.
Unless you support an imperial presidency. (TR was the first actual president that acted upon the premise that the presidency was, in an American way, Imperial) The president has no jurisdiction to tell the court it's going to do anything much less sit a justice that is appointed outside of proper procedure.
Mr Ortega could use a little education on the basics of administrative law/civil procedure and how it is structured in the court system.
No first semester law student would ever attempt to make this argument.
Wishing and dreaming doesn't make it so.
And the court is the sole determiner of courtroom procedures the same as the administration is the sole implementer of federal regulation.
Exactly.
That's the beauty of Ortega's idea. If the President were to pretext Mr McConnell's Constitutionally improper refusal to "advise and consent" as justification to appoint without... then the question would go to the Supreme Court.
Anthony Kennedy........
Constitutionally improper refusal to "advise and consent
what do you imagine that means?
The Constitution requires the Senate to advise and consent. McConnell is refusing to do that. If his refusal leads to a Constitutional crisis, he bears the onus.
Quote:
"The Constitution requires the Senate to advise and consent."
Yes, It does.
But you miss two very important points!
First, they have advised him not to do it. He has been advised.
AND:
Separation of Powers
The Administrative and Judicial branches have NO power over how the Congress, in this case the Senate, does it's business.
That is a doctrine, although not explicitly written into the constitution it was so plain that the founders thought it didn't need to be. ( Even though Madison wrote an amendment to specifically include it , the founders thought it so plain and obvious that such amendment would be redundant)
The Doctrine of Separation of Powers negates anything Mr Ortega thinks he's thought of. (or the president can do about it)
THAT is the beauty of the Founders genius, they were smarter than most people alive even today.
The Senate can do whatever they want, Approve a nominee, Reject a Nominee or outright Ignore a nominee. And neither the President nor the Supreme Court can do a damned thing about it.
At least not without completely chucking the constitution and our entire governmental system right out the window.
Doesn't matter what McConnell does, this never rises to the level of a constitutional crisis. Because the Constitution is so plain about it that a blind man can read it.
One more thing to note:
US Constitution......
Article III, Section. 1:
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
The number of federal courts and number of federal justices (including Supreme Court Justices) are set by the Congress of the United States. And there is nothing the Court can do about that either.
The Constitution says
... he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court...
He shall nominate. No wiggle room.
Thanks for stopping by and contributing!
"First, they have advised him not to do it. He has been advised."
Obama could argue that McConnell is not, and is not authorized to act as an unilateral agent of, the Senate. In other words, the Senate has not advised on the matter until a. an actual nominee has been named, b. the full Senate debates, and rules on, the matter. Also, advice and consent is a clause the Constitution uses in relation to a specific proposed nominee; not in relation to the more general question of whether the president should nominate anyone.
By the way, yes, I am the guy who wrote the DK story.
Interesting that you use the ideal of specificity in the constitution concerning Advise and Consent.
Where in the constitution does it have the line to "Enter Name Here"
Chuckle, this would be humorous if not so sad.
But it does prove one thing. There are educated people who wish to change the constitution to what they think it should mean for their own political purposes.
The enemy within is the most dangerous enemy.
"Where in the constitution does it have the line to 'Enter Name Here'"
Here's your line: "and he shall nominate," Concepts are not nominated; people with names (enter them here) are.
"The Administrative and Judicial branches have NO power over how the Congress, in this case the Senate, does it's business."
The salient consideration here is not regarding "how," but rather "whether" the Senate does its business. Surely, you're not suggesting the Senate has no obligation whatsoever to act on this, or any other matter related to the other two branches, and that their refusal to act has no remedy within these branches.
McConnell's pre-emptive threat is to be considered purely rhetorical, and without legal effect. Until the Senate debates and votes on a specific nominee, (which can only happen AFTER Obama proposes one, they have neither advised nor consented.
Mr Ortega, First off welcome to the forum. (as long as it is you and not one of the all too common shape shifters we have here)
You said:
"Surely, you're not suggesting the Senate has no obligation whatsoever to act on this, or any other matter related to the other two branches, and that their refusal to act has no remedy within these branches."
Yes I am, in fact yes I proved it.
Factually and legally they have no obligation to act. It is their duty to act, IF THEY CHOOSE to take it up.
Which is well established in the legal and historical records.
Speculation, semantics, personal desires, political desires and wishing and dreaming, do not alter that simple fact.
The fact is such is directly written into the constitution and it was felt by those that wrote it that such was so plain in understanding and language that anyone who could barely read (even those who needed to have it read to them) in the 18th century could understand.
Arguing otherwise, is a statement in and of itself.
Mr Ortega, again welcome to the forum, I certainly hope it is you and not some idiot impersonation.
NWM
Thanks for the welcome. Yes, I authored the DK story, and could easily prove it it, if it ever became necessary, by editing it, or starting a new story on DK referencing this discussion or site.
"Factually and legally they have no obligation to act. It is their duty to act, IF THEY CHOOSE to take it up."
First, remember my assertion extends beyond advice and consent to any and all other matters. Now, consider the case of an upcoming election. What you're, in effect, saying is that the Party in control of the election process could, at it's discretion, choose to cancel any and all upcoming elections, and that the Constitution gives them that right. And this is just one of many cases we could explore that suggests our Constitution is fine with tyranny by omission.
Please either clarify your point, or cite the specific Constitutional clause that defends your assertion.
Well thank you for acknowledging that your making an assertion, (speculating) which makes the point your trying to make a theoretical discussion.
And since neither party controls the election cycle (they control it together in unison) your new assertion is so far out there to belie reality.
What your really doing is asserting a "Could" rather than an "Actually Is"
Which, as far as the courts go, is not an argument any court would sustain.
The only reason you choose to assert such is cause you know it is speculation for arguments sake. On this one I choose not to argue.
Wishing and dreaming, does not make it so.
there's plenty of precedent for what McConnell has proposed. The only way a Constituioanal crises can occur is if obama ignores the will of the senate to act, or not act, as it deems appropriate.
there's plenty of precedent for what McConnell has proposed.
Actually, no. There is not. But unprecedented abuse of "consent" is nothing new, especially for Mr McConnell.
According to the Constitution, President Obama must nominate a judge. Then Senate Republicans will do as they please... with the whole nation watching.
President Obama must nominate a judge.
First off, no he doesn't have to. Moreover, Obama's right to nominate is independent of the Senate's right to confirm or not. McConnell can no more stop Obama from nominating someone than I can. Finally. above you claimed McConnell's refusal to advise ot consent is the basis of a "constitional crises" and taht has nothing to do with Obama's power to nominate, so I have no clue what point you are trying to make.
In reality as opposed to left wing red meat sites, there is plenty of precedent where the Senate refused to act on a nomination. The Senate's refusal to act on previous nominations didn't the President the right to appoint justices directly to the bench in the past, it certainly doesn't give the President the power to do so now. The argument is ahistorical and absurd on it's face.
,
President Obama must nominate a judge.
First off, no he doesn't have to.
Constitution of the United States of America, Article. II., Section 2:
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
The Constitution requires the President to nominate, and then gives the Senate power to advise and consent concerning the appointment. I don't like to be pedantic, but in proper English the use of "shall" along with the third person "he" indicates obligation.
This isn't rocket science. I am astonished by wingnuts' spouting bullpuckey in the name of the Constitution, while obviously not knowing what it actually says!
Thanks for implicitly clarifying you had no point to your original post. Do you understand now that McConnell has no say whether the President nominates someone or not, and there is no danger of a Constitutional crisis? Or do you need further explanation?
The Constitution mandates that the President and only the President nominates someone, there is no time-frame to do so. The subject of that clause is what matters. Again, if you were familiar with American history, you'd know that President's have in fact withheld nominating a candidate until an intervening election had taken place. Obama, if he wanted, could decide not to nominate someone and nothing would happen. You know that too, but I understand your need to distract from your silly original argument with a detour into an irrelevant grammar side show. Certainly, it's irrelevant to the seeder's silly argument.
Bottom line, your original post makes no sense. McConnell can't stop the President from nominating someone and McConnell doesn't have to act on a nomination. There is no potential for a Constitutional crises, despite your ignorant fear mongering.
Again, if you were familiar with American history, you'd know that President's have in fact withheld nominating a candidate until an intervening election had taken place.
Oh? The next election is still eight months away, and the next inauguration almost a year away. Could you cite an instance -- just one, mind you, when a President has abstained from nominating in similar circumstances?
Good luck!
I can. answer the first part.
"Oh? The next election is still eight months away, and the next inauguration almost a year away."
During Millard Fillmore's presidency a supreme court vacancy existed for over 2 and a half years. Despite his best efforts to get the position filled. He made three nomination during that period, one withdrew (after being approved by the senate), one was tabled by the senate, and one was ignored by the senate under much the same situation we have now.
30 months, ten months for each, we have ten to go before the next election. it wasn't a constitutional crisis then and it isn't now.
"Could you cite an instance -- just one, mind you, when a President has abstained from nominating in similar circumstances?"
Not that I know of. but there are ample examples of the Senate tabling or ignoring nominations under similar circumstances. Enough of them to not make it an unknown thing for the senate to do. Again the only constitutional crisis is the democrats want to name the next SCJ and the republicans don't want them to.
If actual history is any teacher, this is normal, given the political environment we have today.
Your quick to cite the constitution on the president MUST nominate, yes it is his duty, but the constitution gives no timeline for him to fulfill that duty. But you cite it as that is the end all and be all of it, when of course it is not.
Congress has the power to decide the number of allowed justices and who is allowed to be a justice. it is their duty as spelled out in the same constitution you cite on the presidents behalf. And the same way it is enumerated in the constitution that the president has no time constraints to his nomination, the Senate has no time constraints on their consent either.
And the fact that the Founders thought that to be so plain in the constitutional requirements that it needed no explanation.
All of this has been proven in this thread, both liberal and conservative have said the same thing a number of times.
Please Bob,
Explain what your talking about, we must be missing it, all of us.
Please Bob,
Explain what your talking about, we must be missing it, all of us.
I'll try to keep this simple. Is two sentences too complicated?
A year-long "hold" would be unprecedented. You may not equate "unprecedented" with "crisis" but I think most voters will. Public opinion does not appreciate such behavior (as in the various government shutdowns).
So you are arguing that IN YOUR OPINION this is a national political crisis if it doesn't resolve the way YOU think it will or should.
Against all factual, legal and historical example.
WE got it, it's a political disaster according to Bob.
Which Bob extrapolates to the rest of the nation.
Thank you for clearing that up for us.
So you are arguing that IN YOUR OPINION this is a national political crisis if it doesn't resolve the way YOU think it will or should.
Where did I mention "resolution"? Why must you always make stuff up?
I didn't use the word resolution I said RESOLVE.
You see this question was designed to draw you out Bob.
Sorry to disappoint, But I don't think this is going to turn into a political hate fest.
You are the only one trying to argue a position on the basis of word interpretation. Everyone else has accepted the reality of facts history and law.
But you still want to argue interpretation.
This one doesn't get turned into a political shit fest like many others.
The facts arrived before the bullshite this time. (and came from both sides)
I didn't use the word resolution I said RESOLVE.
"Congress has the power to decide the number of allowed justices and who is allowed to be a justice. it is their duty as spelled out in the same constitution you cite on the presidents behalf. And the same way it is enumerated in the constitution that the president has no time constraints to his nomination, the Senate has no time constraints on their consent either."
As with so many other instances where, by omission, the Constitution is not clear on a matter, clarification can be sought through the courts. So, according to the idea that justice delayed is justice denied, Obama could sue claiming that a reasonable timeframe for the Senate to act on his nomination be established by the fact that an inordinate delay unjustly denies him his Constitutional right to appoint judges.
Yes, our judicial branch has always been as politicized as our other two branches. A Democrat-led court would decide in favor of Obama's suit, whereas a Republican-led one would not. But that a court can have the final say in this is, barring an eventual Constitutional Amendment that states otherwise, undeniable.
Like I said n my first post to the OP,
MARBURY vs MADISON.
Read it, understand it.
As far as appointing Federal Judges go it is ESTABLISHED PRECEDENT. (way back in 1803)
No matter how you wish to interpret the constitution, or ignore it's plain writings, the Supreme Court has already decided the issue.
Which makes your speculations moot.
And that is something you cannot get around.
Sorry.
Marbury vs Madison has nothing to do with the question at hand.
The case established the Supreme Court as the final arbiter of jurisprudence. It concerned the nomination of a justice of the peace, but that is not the significance of the case.
You obviously did not read the linkage I posted in my first response.
It stemmed from a federalist effort to pack the judiciary with 16 federalist circuit judges and 42 federal justices of the peace. (which sat in place of a circuit judge while the circuit judge was away) Marbury was one of the justices of the peace who petitioned the court and represented all of the appointees hurriedly approved by the outgoing Senate.
John Marshall was Adams secretary of state who was appointed Chief justice before all the appointments were delivered. which fell to James Madison as the new Secretary of State to complete. Marshall (writing for the majority) ruled that although what Madison did was illegal and reversible, Marbury didn't have standing under the constitution to file the petition in the first place because he wasn't a federal justice as he never received his appointment. If he had received it, he would of had standing and he would have won.
Notwithstanding that the court took the opportunity to expand their role in society by taking jurisdiction over all legal issue in the new nation.
It was also the first example of judicial activism. It was landmark of course, but the case itself covered 16 federal circuit judges (currently known as federal district judges) and 42 federal justices of the peace (which are also classified as federal judges today). it was a slap to the face of the administrative and congressional branches who tried overnight to pack the judiciary with political leaning justices.
Nice try at minimizing it's impact and it's relevancy here Bob.
But as they say, in legal circles, It's on point and is now Res Judicata.
I'll let you look that up if you don't know what it means.
It concerned the nomination of a justice of the peace, but that is not the significance of the case.
If your understanding of Constitutional law is that Marbury vs Madison is important because of what it ruled concerning Mr Marbury's commission... then I wish you a nice life...
It does control as far as federal judicial appointments go.
YOU got something else that says different bring it forth for consideration, but, since we have had this back and forth for a day now, it is obvious that you do not. AND.....
The facts are not according to me, It is according to federal law.
Like always, lose on the facts, resort to insults.
My job is done.
Like always, lose on the facts, resort to insults.
I don't think you understand. I'm not trying to convince you of anything. I warn you that you're wrong about Marbury, but I really don't care if you want to remain wrong.
And as for insults... Nope. None. You're makin' stuff up again.
Wikipedia has it wrong, Harvard law school has it wrong, Yale school of Law has it wrong, University of Arizona school of Law has it wrong, even the ACLU has it wrong......
......and you are right.
Maybe the President aught to nominate you for the Supreme Court vacancy, since you are the only one that understands the law in these cases......
Wikipedia has it wrong, Harvard law school has it wrong, Yale school of Law has it wrong, University of Arizona school of Law has it wrong, even the ACLU has it wrong......
No. They don't have it wrong.
You do. You misunderstand them.
The biggest impact of Marbury was that it give SCOTUS the "ability" to review all laws passed to determine their constitutionality.
Yes, they took the opportunity to extend their jurisdiction to all courts/issues of law in the nation.
Doesn't change the fact that the case at bar was over the appointment of federal judges and when and how they actually become Federal Judges. it was also a slap in the face to both the Administrative and Congressional branches of government who were attempting to pack their judiciary with last minute political appointments. You could almost say it was the supreme court telling the other two branches that they will control their own branch thank you very much. I say this as Chief Justice Marshall was the officer with the duty to deliver the appointments for president Adams and didn't complete the task, and then is the Justice that ruled against the appointments in the decision when it came to appeal.
Hows that for irony.
But, for Marshall to take jurisdiction over the entire nations legal system, he had to separate the old system from the new, and to do that he had to rule in Madison's favor, that the Supreme Court is an appellate body only and it is unconstitutional for them to hear direct petitions and decide direct appeals.
They gave up a very small constitutional duty by declaring it unconstitutional under the judicial act of 1801, and took an immense amount of judicial power based upon the judicial articles in the constitution.
Marshall's reasoning was correct.
If the Supreme court was bound by the dictates of the congress as to what it's limits were then it would amount to a useless body hearing nothing but minor direct appeals and writs, by applying the constitution he took them out from under that sever limitation and essentially made them an equal branch not controlled by either of the other two.
Not exactly what the Founders had in mind when they wrote the constitution, but they eventually came to see the logic of it. (and mostly agree with it)
BTW: at the time of the Marbury decision, the court consisted of six justices, and the decision was a 4-0 unanimous decision as two of the sitting justices refused to hear the case.
Constitution is not clear on a matter
The Constitution is very clear. The President has the sole right to nominate, the Senate has to the sole right to confirm. The language is explicit. It's not complicated or unclear because it doesn't result in your preferred outcome.
Obama could sue claiming that a reasonable timeframe for the Senate to act on his nomination be established
Even if we ignore the plain language of the Constitution, As NWM points out, Supreme Court seats have remained vacant for years while the Senate witholds consent. An 11 month delay can't even satisfy accepted historical practice.
im his Constitutional right to appoint judges.
The President doesn't have a right to appoint judges. He has a right to nominate judges. That right is completely invested in the Presidency and cannot be usurped by the other branches if the President were to fail to nominate someone in an arbitrarily timely fashion. McConnell can't nominate a justice in a month and claim the President didn't act in a timely fashion. Nor could he do it in 3 years.
You argument is premised upon a mistaken understanding of the Constitution. Each branch of the government is equal to the others. You are proposing to radically undermine the powers of Congress by turning it's absolute right to reject or confirm a nomination into merely a right to suspend while taking the right to confirm and vesting it in the Executive Branch. There is absolutely no basis in the Constitution to turn the Senate into the equivalent of the House of Lords, powerless to do anything but delay an all powerful President.
The President nominates. The Senate confirms. Each branch is all powerful within its sphere.
I would also add I have every confidence the Court would unanimously reject such a scheme. Just a few years ago, the Court unanimously rejected Obama's violation of the Constitution when Obama tried to back the NRLB with illegal recess appointments. There's no way they would act as accomplices in destroying the Separation of powers.
"It's probably redundant to note that Mr Ortega hasn't a clue what legal precedent actually is."
I used the term more generally as a principle, in the sense that if a court hasn't challenged an action, the "precedent" we all assume is that the action is not necessarily illegal.
Actually, the term precedent in the law has a specific definition, it means a question of issue already decided.
Your usage as a "Principle" is in error. Your speculation of principle is an issue already decided.
Speculate all you want, you have that privilege, a Court and the law does not have such privilege.
No, precedent means a case/law has been decided and "may" be used as an example. It does not have to be used.
Exactly right First, It breaks down like this.....
Yes precedent means that a law or an issue at law has already been decided, and in the case of long standing precedent commonly known as "Settled Law"
Now it's application is different in different circumstances.
In a trial court or lower court the "Settled Law" application is primarily used. Very seldom will a lower court controvert established precedent without very compelling reason. (judges have track records that are kept also and being overturned on appeal against precedent is not something they risk very often. Also "Directly On Point" precedent (identical issue of law) is almost never overturned at the trial court level)
In the senior appellate courts level they can use it either way as settled law or as an advisory decision. Depending on the legal question before them. (again "Directly On Point" is seldom overturned even on this level) If the issue is identical to a previous recently settled case they very seldom go against precedent.
There is no precedent the Supreme Court cannot overturn or change at any time.
Precedent is not absolute, but precedent is the backbone of case law and it is wise not to change it without very compelling reason.
What will most likely happen is that upon even hearing that President Obama is contemplating such a series of moves, Senate Majority Leader McConnell will quickly cave,
No, what would most likely happen is that the Speaker of the House would then initiate a Bill of Impeachment and the Senate (even the Democrat lemmings) would most likely convict. It would be based upon a deliberate violation of the Constitution by an official who has sworn to defend that Constitution.
The supposed precedent by Theodore Roosevelt only allowed the treaty to go into administrative effect and, even then, it only lasted until either the Senate chose to act upon it or until the Congressional term ended. NOTE: The word "chose" was used deliberately. The Senate has the absolute choice regarding when or whether to act in the cases of Presidential appointments. The Senate is not required to obey the President's wishes in such matters at all. That's what Separation of Powers means and, at this time, it's fulfilling the function that it was designed to fulfill; keeping a Presidency from becoming an Imperial Presidency.
Although the Senate gives advice and consent for both treaties and Supreme Court nominees, the two really have nothing in common. The executive authority of the President allows the President to enter into non-binding executive agreements, bypassing the Senate's review of formal treaties, similar to the way the President has used his authority as commander and chief of the military to essentially draw us into a military conflict without a declaration of war from Congress (e.g. Vietnam). But there is no implied power that allows the President to evade the Senate on a Supreme Court nominee. Granted the President has absolute discretion to nominate anybody he chooses to fill a Supreme Court vacancy but the Senate has absolute authority to dispose of the nomination in any way that it sees fit. By not moving on the nomination, the Senate has given its advice that it does not consent. Both sides should be reluctant to use extreme options because, one day, that power will rest in the hands of the opposing side. If the President did ignore the Constitution and appoint someone to the Supreme Court without Senate consent, he may be impeached by the House but he couldn't be convicted in the Senate because it requires a two thirds vote and there aren't enough Republicans. But ignoring the Constitution could have far more serious consequences than impeachment because States may decide that, if the President can ignore the Constitution and appoint a justice without the consent of the Senate, then they can similarly refuse to respect any Supreme Court decision in which that justice was the deciding vote.
What gets me One?
Is how many wish it weren't so. They have no conception of what would be lost without such checks and balances.
Besides, anyone he issued a warrant of appointment to would not be recognized by the Supreme Court itself anyway.
Marbury vs Madison, they would have to vacate their own holding.
Not going to happen.
What gets me One? Is how many wish it weren't so. They have no conception of what would be lost without such checks and balances.
Sooner or later, the President would run roughshod over the other branches of government; democracy would fail; and we would have a dictator for life.
Yeah, "A republic, IF YOU CAN KEEP IT."
"But there is no implied power that allows the President to evade the Senate on a Supreme Court nominee."
The point of my DK story is that if the Senate chooses to abdicate its authority to advice and consent, by, for example, not initiating the process, Obama can, like Roosevelt did, take matters into his own hands unilaterally until the Senates decides to involve itself in that process. Whether the Constitution upholds Roosevelt's treaty or the proposed Obama unconsented appointment is, as I state in the piece, ultimately a case for the courts to decide, if they so desire.
And unfortunately for your argument, as I have pointed out, Factually the court has already decided this issue.
Against your palliative (and wholly speculative) argument.
And it was decided a full 100 years before.
Advise and Consent is not something that is legally arguable. Particularly when the constitution specifically grants such rights to the specific bodies they chose.
Your argument is pointless. And not worth consideration.
"Your argument is pointless. And not worth consideration."
You talk as if judicial decisions are never reversed. Your ending rhetoric is better directed at your own points.
"If the President did ignore the Constitution and appoint someone to the Supreme Court without Senate consent,"
What Roosevelt said about his own decision to act without Senate Consent, "the Constitution did not forbid my doing what I did," would similarly apply to Obama's decision to appoint a SC judge without that Consent. Actually, considering McConnell's vow to not even open debate on the matter, Obama's case is much stronger than was Roosevelt's.
considering McConnell's vow to not even open debate
That's interesting. The Constitution requires advice and consent. If the Majority Leader announces that he will not respect that requirement, what does that imply for others' obligations?
Could the President make an appointment "until such time as the Senate fulfills its obligations"?
How would an eight-judge court rule?
And everybody knows that McConnell is/was just posturing - as he always does.
Agree, McConnell is just a mouthpiece.
Obama is not going to do anything drastic. People should know that much about him by now.
Yeah, that would be like asking Jimmy Carter to become Teddy Roosevelt overnight.
That isn't going to happen either.
The crux of the opposing positions appears to be what is meant by "advice and consent". The Constitution does not set out any process for Senate consideration of judicial nominees nor does it state or imply that "advice and consent" must necessarily be functions that occur simultaneously after a nomination. By definition, advice is guidance given by someone regarding a future action. Thus, if it chooses, the Senate can offer guidance before the President makes a nomination and, to me, that guidance can include advising the President not to nominate a particular person or not to nominate anybody right now because he/she will not be confirmed. The President can choose to ignore the advice and do as he pleases but the Senate can withhold consent (especially after telling him not to waste his time). Since the Constitution doesn't preclude the Senate from acting in this way, it is a procedural matter entirely within the discretion of the Senate and not subject to review in the Supreme Court.
Bob said:
"No. They don't have it wrong.
You do. You misunderstand them."
Tell ya what Bob, I'll just leave and go back to lurking. Let you have the floor.
The group doesn't need any real knowledge, they have you.
Everyone, Bob has the floor, truth and reality, wisdom and knowledge, truth and fact are all at his command.
They say if you seek you shall find.
And I have Identified the groups god member.
All knowledge is at his disposal.
I bow to his godlihood.
Enjoy.
NWM
NWM I'm just getting to know you! I loved reading you and Bob's banter and enjoyed your wit and what you know on the subject. You guys make it interesting. I haven't commented because the discussion is bit beyond my knowledge but I've been tracking you guys and thinks it's incredible how you challenge each other.
Gee... That's awfully kind!
But in reality, knowing the significance of Marbury is hardly remarkable.
It's not knowing the significance of Marbury that is remarkable. But of course... You are a remarkable fellow.
Just a thought , but in an ideal situation , the president could have his short list made know through his VP who is also president of the senate , to get a feel ( advice maybe) on which might stand the better chance of getting senate consent and comfirmation even though both are controlled by different parties politically
I disagree that the senate has not filled their advise portion , the senate majority leader has given his advise , and it was to let the next admin whatever side wins do it , that advise is what it is , but it is the majority leader that decides what does and does not come to the senate floor for a vote , even comfirmation votes.
now if Mr ortegas DK piece is followed in line with what TR did, its pretty sure that the senate will make a vote and the comfirmation denied and the person removed , but its moot because of madbury v Madison since the proper warrents cant be issued without comfirmation.
as for numbers on the USSC there have been as few as 3 in the past and as many as 13 I think , it was brought down to 9 after FDR tried to pack the SC when he was having problems with congress getting his depression era programs through and they were being challenged as unconstitutional.
no where is it actually written that there have to be 9 Justices , the senate can make it 7 or 5 if they so determine , but I think 9 is a good number , and using an odd number ensures no ties.
But, but what many are ignoring about this thread is the huge difference between "treaties" and selection of judges - apples and oranges.
It wasn't ignored First, it was mentioned, but got buried in Bob trying to defend unreality/insanity.
And yes it is apples to oranges. (but more akin to apples to watermelons)