There’s Ample Precedent For Rejecting Lame Duck Supreme Court Nominees

[bigbadjohn45]

There’s Ample Precedent For Rejecting Lame Duck Supreme Court Nominees

February 13, 2016 By Gabriel Malor

Historically, many Supreme Court nominations made in a President’s final year in office are rejected by the Senate. That started with John Quincy Adams and last occurred to Lyndon B. Johnson.

It is critically important that the Senate hold pro forma sessions, since President Barack Obama would be able to make a recess appointment to the Supreme Court if the Senate goes out of session. Currently, there is a five-day recess this week and a two-week recess scheduled for April. There have been twelve such recess appointments to the high court. A recess appointment would last until the end of the Senate’s next session.

Historically, most presidents select a nominee within a week of a Supreme Court vacancy. However, there have been several lengthy vacancies when the Senate refused to play ball with controversial presidents or controversial nominees.

President John Tyler had a particularly difficult time filling vacancies. Smith Thompson died in office December 18, 1843. His replacement, Samuel Nelson, was in office starting February 14, 1845. That’s a vacancy of 424 days. Henry Baldwin died in office April 21, 1844. His replacement, Robert Cooper, was in office starting August 4, 1846. This vacancy lasted 835 days because Tyler could not get the Senate to work with him. During Tyler’s presidency, the Senate rejected nine separate Supreme Court nominations!

Most recently, Abe Fortas resigned May 14, 1969. His replacement, Harry Blackmun, was in office starting June 9, 1970, making the gap just longer than a year.

Several pending cases were expected to be 5-4 decisions. Crucially, the immigration (DAPA) case, United States v. Texas et al., and the mandatory union dues case, Friedrichs v. California Teachers Association, and the Little Sisters of the Poor Home for the Aged v. Burwell cases on the contraception mandate accommodation.

Decisions that are tied with a 4-4 vote have no binding precedent and the decision of the lower court is upheld. This would be good in United States v. Texas et al., because the lower court’s decision was that states have standing to sue against an Obama policy that muzzles states from enforcing immigration laws.

But this would bad in the Friedrichs case as the lower court ruled that teachers must pay union dues, even if those dues fund political causes that violate a union members beliefs. Likewise, if the lower court’s decision in the Little Sisters of the Poor case were to be upheld, it would force the nonprofit organization to fund contraception, even though that violates their religious beliefs.

 

[nashvillegoldenflash]

Sen. Chuck Schumer said in July 2007 that no George W. Bush nominee to the Supreme Court should be approved, except in extraordinary circumstances, 19 months before a new president was set to be inaugurated.

"We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances," Schumer, a New York Democrat, said in prepared remarks to the American Constitution Society, a liberal legal organization.

Schumer cited ideological reasons for the delay.

"They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not," Schumer said at the time.

On Sunday, Schumer ripped Senate Majority Leader Mitch McConnell as an "obstructionist" for vowing to block any Obama nominee to replace Scalia on the high court from receiving a Senate confirmation vote.

"When you go right off the bat and say, 'I don't care who he nominates, I am going to oppose him,' that's not going to fly," Schumer said on ABC's "This Week."

President Bush never got the opportunity to appoint another Justice after Schumer spoke in 2007, so the matter was rendered moot.



http://www.washingtonexaminer.com/s...ny-bush-supreme-court-nominee/article/2583283

 

[bigbadjohn45]

Sen. Chuck Schumer said in July 2007 that no George W. Bush nominee to the Supreme Court should be approved, except in extraordinary circumstances, 19 months before a new president was set to be inaugurated.

"We should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances," Schumer, a New York Democrat, said in prepared remarks to the American Constitution Society, a liberal legal organization.

Schumer cited ideological reasons for the delay.

"They must prove by actions, not words, that they are in the mainstream rather than we have to prove that they are not," Schumer said at the time.

On Sunday, Schumer ripped Senate Majority Leader Mitch McConnell as an "obstructionist" for vowing to block any Obama nominee to replace Scalia on the high court from receiving a Senate confirmation vote.

"When you go right off the bat and say, 'I don't care who he nominates, I am going to oppose him,' that's not going to fly," Schumer said on ABC's "This Week."

President Bush never got the opportunity to appoint another Justice after Schumer spoke in 2007, so the matter was rendered moot.

View embedded media

http://www.washingtonexaminer.com/s...ny-bush-supreme-court-nominee/article/2583283

Flash, Schumer exemplifies the height of hypocrisy of the Democrats. In other words, it was okay to block any Bush nominee--19 months before a new president was set to be inaugurated--but yet any Obama nominee must be considered?

Two points:

1) Mitch McConnell will (most likely) not even allow any nomination to be considered; and,

2) Even if it were, Ted Cruz has already promised a filibuster (we can count on that)--requiring 60 votes to envoke cloture.

In other words, it ain't gonna happen, liberals....

 

[bigbadjohn45]

And this....

February 14, 2016
Dems in Senate passed a resolution in1960 against election year Supreme Court appointments
By Thomas Lifson

Read it and weep, Democrats. The shoe is on the other foot. David Bernstein at the Washington Post’s Volokh Conspiracy blog:

Thanks to a VC commenter, I discovered that in August 1960, the Democrat-controlled Senate passed a resolution, S.RES. 334, “Expressing the sense of the Senate that the president should not make recess appointments to the Supreme Court, except to prevent or end a breakdown in the administration of the Court’s business.” Each of President Eisenhower’s SCOTUS appointments had initially been a recess appointment who was later confirmed by the Senate, and the Democrats were apparently concerned that Ike would try to fill any last-minute vacancy that might arise with a recess appointment.

The GOP opposed this, of course. Hypocrisy goes two ways. But the majority won.

As it should this time.

 

[bigbadjohn45]

And this....

February 14, 2016 11:46AM
Congress Can Deny Barack Obama the Power to Replace Justice Scalia
By Michael F. Cannon

Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, “this vacancy should not be filled until we have a new President.” Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons.” Conor Friedersdorf says the no-vote stratagem is “illegitimate” because “the Senate does have an obligation to fulfill its ‘advice and consent’ obligation….A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation.” Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.

Clinton and Friedersdorf are overlooking the “consent” part of “advice and consent.” Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.

Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.

At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.

Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.

 

[Blueraider_Mike]

I hate politics...this is one of the reasons. Ever since Bork, this process has become so political. Its so ugly. Both groups come back with well they did it, so we can too.

The President has the constitutional right to nominate who he pleases, the Senate has the constitutional right to confirm or not. All of it has political risk.

 

[bigbadjohn45]

I hate politics...this is one of the reasons. Ever since Bork, this process has become so political. Its so ugly. Both groups come back with well they did it, so we can too.

The President has the constitutional right to nominate who he pleases, the Senate has the constitutional right to confirm or not. All of it has political risk.

Mike, don't overlook the “consent” part of “advice and consent.”

From the article:

"Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want."