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The role of Congress in Appointments

Is the Congressional power of approval equal to a president's power to nominate?

  • Yes, Congress can approve or reject based on anything, same as the president

    Votes: 6 50.0%

  • No, Congress should yield to president and approve or reject based on qualifications and merits

    Votes: 6 50.0%
  • Total voters
    12
Chomsky said:
Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.

The Constitution does *not* give specific time-frames to many of it's directives, but that does not mean they can be *abrogated*. So if your argument is the nominee process can be indefinitely delayed due to no time period specified by the Constitution, I argue you are wrong!

And ironically enough, it will be the Court itself that decides this all, if a citizen with standing files!
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The court won't decide it, because the court can't make law, nor change The Constitution.
 
Chomsky said:
Well, here's the text itself:

"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, 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."

[Article II, Section 2, Clause 2]

I see directives given to both the President & Senate, and I see nothing stating these directives are 'optional'.

Do you?
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The Senate has advised that they're not going to vote on a nominee until after the election.
 
alaro45 said:
If so, at what point does it become irresponsible for a president to ignore the option of compromising choosing to just leave a position open?
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If anything, congress has more power. The President SHALL nominate. He doesnt have a choice. The congress, however, can choose to consent or not to appointment. In addition, congress has the power to make all laws regarding the Presidents powers and override his veto if he doesnt consent with them. Irresponsibility is something blame both for. The President should be working with congress BEFORE nominating, so that vacancies are filled efficiently.
 
Chomsky said:
I appreciate your opinion and expertise in this matter, and if I understand correctly you're making the argument that the President is Constitutionally directed to nominate, but the next clause applying to the Senate is a requirement encumbrance upon the President, but optional to the Senate. Correct?

I don't see this reading at all.

It would seem obvious that the Senate has the right to not consent to a specific nominee, but by your argument the Senate has no obligation to staff the Court whatsoever!

Is this what you're arguing? Because that reading strikes me as incredulous
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You make a good point. To interpret that part of the clause in such an extreme way would make a nullity of it, and the Supreme Court--rightly--is loathe to do that. Considering that, I think my interpretation was too absolute, and that a rule of reason has to apply. The Senate, as you say, certainly has power to withhold its advice, its consent, or both, as to a particular nominee. But if the Senate were to do that in every case, making it impossible for a President to appoint any Supreme Court justices or other officers, it would be exceeding its constitutional authority. The remedy would then lie with the people, who could refuse to re-elect any Senator they held responsible.

There is another joker in the deck when it comes to conflicts between the Executive and Legislative Branches. The Supreme Court, following its "political questions" doctrine, usually stays out of them. It has discussed its reasons in several cases where it declined, on that ground, to decide the substantive issues involved. The justices would be all the more unlikely to reach the merits in a case involving appointments to the Court. This is a political fight, and this President, being on his way out, seems to be in the weaker position. The Court had only eight justices while Justice Jackson was off serving at the Nuremberg trials, and the country seems to have survived.
 
matchlight said:
How is the Senate preventing the President from making nominations? Mr. Obama can nominate anyone whenever he likes. The Senate, though, can then decline to offer its advice or consent as to the nomination, in which case the President may not appoint the nominee.
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I said "a nomination to proceed," I did not say preventing making a nomination.
 
apdst said:
The court won't decide it, because the court can't make law, nor change The Constitution.
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If a citizen with standing files suit in federal court and does not prevail, he will have every opportunity to appeal as with any other case, and the Supreme Court will have the opportunity to grant cert if it so desires like in any other appellate case - despite your assertions to the other.
 
matchlight said:
You make a good point. To interpret that part of the clause in such an extreme way would make a nullity of it, and the Supreme Court--rightly--is loathe to do that. Considering that, I think my interpretation was too absolute, and that a rule of reason has to apply. The Senate, as you say, certainly has power to withhold its advice, its consent, or both, as to a particular nominee. But if the Senate were to do that in every case, making it impossible for a President to appoint any Supreme Court justices or other officers, it would be exceeding its constitutional authority. The remedy would then lie with the people, who could refuse to re-elect any Senator they held responsible.

There is another joker in the deck when it comes to conflicts between the Executive and Legislative Branches. The Supreme Court, following its "political questions" doctrine, usually stays out of them. It has discussed its reasons in several cases where it declined, on that ground, to decide the substantive issues involved. The justices would be all the more unlikely to reach the merits in a case involving appointments to the Court. This is a political fight, and this President, being on his way out, seems to be in the weaker position. The Court had only eight justices while Justice Jackson was off serving at the Nuremberg trials, and the country seems to have survived.
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Thanks for your consideration of my opinion.

Yes - irrespective of the Constitutional considerations, I believe that in your post which I bolded is the dominate component in this year's fight over nominations, and I also believe you are absolutely correct!
 
Chomsky said:
If a citizen with standing files suit in federal court and does not prevail, he will have every opportunity to appeal as with any other case, and the Supreme Court will have the opportunity to grant cert if it so desires like in any other appellate case - despite your assertions to the other.
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Which has nothing to do with what I said.
 
Chomsky said:
Obama, is a politician; he like others will say things for political expediency. And he like other Presidents has had his Executive Orders ruled Unconstitutional, so he's far from infallible. So I don't buy your using him as the arbitrator here.

The Constitution does *not* give specific time-frames to many of it's directives, but that does not mean they can be *abrogated*. So if your argument is the nominee process can be indefinitely delayed due to no time period specified by the Constitution, I argue you are wrong!

And ironically enough, it will be the Court itself that decides this all, if a citizen with standing files!
Click to expand...

apdst said:
The court won't decide it, because the court can't make law, nor change The Constitution.
Click to expand...
Chomsky said:
If a citizen with standing files suit in federal court and does not prevail, he will have every opportunity to appeal as with any other case, and the Supreme Court will have the opportunity to grant cert if it so desires like in any other appellate case - despite your assertions to the other.
Click to expand...
apdst said:
Which has nothing to do with what I said.
Click to expand...
:lamo
 
Chomsky said:
Thanks for your consideration of my opinion.

Yes - irrespective of the Constitutional considerations, I believe that in your post which I bolded is the dominate component in this year's fight over nominations, and I also believe you are absolutely correct!
Click to expand...

Most of us probably see 4 scenarios for next year.
Here's how I see the repercussions.
1. DEM POTUS and DEM Senate--McConnell filibusters and Schumer pulls the nuclear trigger first invented by McConnell last decade.
Which McConnell didn't have to use when Daschle backed off of filibustering Bush appointments.
2. DEM POTUS and GOP Senate--McConnell does what he's done the last two years.
3. GOP POTUS and GOP Senate--McConnell pulls the nuclear trigger he first invented last decade when Schumer filibusters.
4. GOP POTUS and DEM Senate--Does Schumer pull a McConnell and block every Trump appointment to all three levels of the federal bench?
In addition, does Schumer delay Trump appointments to his cabinet as McConnell did to Lynch as AG?

If DEMs gain the Senate in 2016, do they lose it in the mid-terms of 2018 with 25 DEM/INDY Senators up for reelection?
If so, McConnell uses budget reconciliation to side-step the filibuster and pass Ryan's budget along to a potential Trump.
McConnell does this next year if he keeps the Senate along with Trump winning.
If Ryan can ever get a budget past his Freedom Caucus .
 
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NIMBY said:
Most of us probably see 4 scenarios for next year.
Here's how I see the repercussions.
1. DEM POTUS and DEM Senate--McConnell filibusters and Schumer pulls the nuclear trigger first invented by McConnell last decade.
Which McConnell didn't have to use when Daschle backed off of filibustering Bush appointments.
2. DEM POTUS and GOP Senate--McConnell does what he's done the last two years.
3. GOP POTUS and GOP Senate--McConnell pulls the nuclear trigger he first invented last decade when Schumer filibusters.
4. GOP POTUS and DEM Senate--Does Schumer pull a McConnell and block every Trump appointment to all three levels of the federal bench?
In addition, does Schumer delay Trump appointments to his cabinet as McConnell did to Lynch as AG?

If DEMs gain the Senate in 2016, do they lose it in the mid-terms of 2018 with 25 DEM/INDY Senators up for reelection?
If so, McConnell uses budget reconciliation to side-step the filibuster and pass Ryan's budget along to a potential Trump.
McConnell does this next year if he keeps the Senate along wit Trump winning.
If Ryan can ever get a budget past his Freedom Caucus .
Click to expand...
You know, you just did to Senatorial politics what sportcasters try to do to sports - but always fall short! :mrgreen:
 
Southern Dad said:
I believe that President Obama actually selected well with Merrick Garland. He picked someone who is not far left and someone he thought might be able to get Senate consent. One of the biggest problems is that Barack H Obama does not know how to lead. It isn't his fault. He's never had any prior experience leading anything. He was never governor of a state, mayor of a city, or even troop leader in the Boy Scouts. Yes, I know that just got the liberals hackles up. But think about it, every time he takes the lectern he challenges the Republicans to defy him. He insults them, he berates them. Is it any surprise that he is met with resistance.

Here's how President Southern Dad would have handled the situation. Because balance on the Supreme Court is important, I would have brought Republicans into the tent. I'd have asked the Republican leadership to give me a list of twenty that they would consider. I would have had the Democrat leadership give me the same. We'd then meet and compare the list looking for people that were on both lists. Then we negotiate. Another tact that I'd have looked at was discretely asking Ruth Bader Ginsberg to resign, offering to let her give me a short list for her replacement. If she acquiesced then I would have named one person from the Republicans list and one from the Democrats list. Even better if they were on both lists.

But the last thing that I'd have done was get up on the podium and demand the that Senate do its job. Especially when he, as Senator Obama spoke out against the same thing with the prior administration.
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There is a difference between being a leader and being a ''wheeler-dealer' ..
IMO, Obama IS a leader, but, people must think for themselves .. and it seems as if the conservatives cannot do this ..
BTW in a ''perfect world'', the SCOTUS members should be apolitical ..
This is what we should be striving for ..
 
Chomsky said:
If a citizen with standing files suit in federal court and does not prevail, he will have every opportunity to appeal as with any other case, and the Supreme Court will have the opportunity to grant cert if it so desires like in any other appellate case - despite your assertions to the other.
Click to expand...

The Court might grant cert, if anyone had standing to sue about this. But I'm not sure who that would be. And the "political questions" doctrine might prevent the Court from deciding the substantive issue anyway. For anyone interested in reading about how this doctrine limits the Supreme Court's exercise of judicial review, the main cases are Baker v. Carr, 369 U.S. 186 (1962) and Powell v. McCormack, 395 U.S. 486 (1969). Baker, which is a very important decision involving reapportionment of state legislative districts, established a several-part test for determining if an issue presents a political question. The Court made clear in both cases that the separation of powers provided by the Constitution is the main reason an issue that presents a political question is not justiciable in federal court.
 
matchlight said:
The Court might grant cert, if anyone had standing to sue about this. But I'm not sure who that would be. And the "political questions" doctrine might prevent the Court from deciding the substantive issue anyway. For anyone interested in reading about how this doctrine limits the Supreme Court's exercise of judicial review, the main cases are Baker v. Carr, 369 U.S. 186 (1962) and Powell v. McCormack, 395 U.S. 486 (1969). Baker, which is a very important decision involving reapportionment of state legislative districts, established a several-part test for determining if an issue presents a political question. The Court made clear in both cases that the separation of powers provided by the Constitution is the main reason an issue that presents a political question is not justiciable in federal court.
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Now that you've mentioned "political questions doctrine" a second time, I think I am going to familiarize myself with it a bit when I get a chance - I've never heard of it.

Thanks for listing the pertinent cases.

My only comment would be:

It would seem then (given what you stated), the only real matter of legal contention might be in determining if the current stand-off is indeed a political matter, much as the Court had to wrestle with: "Is ObamaCare a tax"?

I have no idea as to who would have legal standing to bring suit, but wondered if one of the appelattes who's appeal resulted in a judicial tie, and was subsequently not overturned, might give it a shot? But that may be a reach.
 
earthworm said:
There is a difference between being a leader and being a ''wheeler-dealer' ..
IMO, Obama IS a leader, but, people must think for themselves .. and it seems as if the conservatives cannot do this ..
BTW in a ''perfect world'', the SCOTUS members should be apolitical ..
This is what we should be striving for ..
Click to expand...

If President Obama is a leader in your mind, then he's a failure. A big one. How many times have we heard the claims from the left that he can't get anything done because the Republicans shut him down at every turn. Do you know why that happens? Because he isn't a leader. He couldn't lead a pack of hungry Cub Scouts to the grocery store candy aisle. He's not the first President to have a Congress in the oppositions hands. Both Bill Clinton and George W Bush found themselves dealing with a Congress help by the opposition but both of them were still able to get things done. Why? Because they are leaders. Experienced leaders. Both had been governors of states and had actual experience leading something prior to becoming President.

The left proves every day that they do not see Barack H Obama as a leader. They prove it when the pass the buck. Leaders are responsible for what happens on their watch. We don't talk about Newt Gingrich balancing the budget resulting in a surplus, we talk about Clinton's Balanced Budget. What's the budgets look like under Obama? Wait, there hasn't been one? The first two years his party had both houses... Odd.
 
Chomsky said:
Now that you've mentioned "political questions doctrine" a second time, I think I am going to familiarize myself with it a bit when I get a chance - I've never heard of it.

Thanks for listing the pertinent cases.

My only comment would be:

It would seem then (given what you stated), the only real matter of legal contention might be in determining if the current stand-off is indeed a political matter, much as the Court had to wrestle with: "Is ObamaCare a tax"?

I have no idea as to who would have legal standing to bring suit, but wondered if one of the appelattes who's appeal resulted in a judicial tie, and was subsequently not overturned, might give it a shot? But that may be a reach.
Click to expand...

The only wrestling with the question whether the Obamacare mandate was a tax was done by the Chief Justice. The result was as much a disingenuous invention as it was for the Court to claim, eighty years ago, that the Social Security Act was constitutional because the funds would be held in trust. That was baloney; the justices knew it was baloney; and they put their seal of approval on it anyway, because FDR had intimidated them into rubber-stamping his New Deal programs.

Roberts bailed out the 2,000-plus-page monstrosity a second time last year by saying that when its authors said only state governments could set up exchanges, it really meant federal or state governments. Justice Scalia mocked the opinion in his dissent for ignoring what the text of the law plainly said. He quipped that Roberts' guiding principle seemed to be that the Court must not hold Obamacare unconstitutional.

You might apply the test in Baker to this situation and see if you think this matter of appointing Supreme Court justices qualifies as a political question.
 
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