Patricia A. O'Malley

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Patricia A. O'Malley
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Supreme Court Spectacle Illustrates the Nomination Process
And Senate Republicans Execute Outstanding Obstruction Obstacles
February 15, 2016






 


Supreme Court Justice Antonin Scalia passed away on February 13, 2016.  Before his body was even cold, Senate Republicans squawked that President Obama should ignore his constitutional duty to nominate a successor, and leave that task to the next president.  They vowed to violate their own constitutional duty to evaluate and vote on whether to confirm that nominee.

Yes folks, the very people who moan and wail incessantly that they just LOOOOOOVE the Constitution eversomuch once again throw a screaming fit because they might not get their way.

And once again, our political illiterati predict and pronounce coming events without a clue about real life.  So, this is how the process really works, for all presidential nominations.

The Constitution
The United States Constitution, Article II, Section 2, Clauses 2and 3 say:
(2)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.

[3] The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

This is the "advice" part.
The president asks the senators on the relevant committee to suggest several qualified people whom he should interview for the open position.  Yes, that really does happen.  It happens every time there is a vacancy, in any position. That's the long list. The president and his advisors may add a few names, and then narrow that down to the short list. Then they interview and investigate those people.   Then the president announces his nominee.

This is the "consent" part.
After the official nomination is announced, the committee holds hearings to investigate and interview the nominee to determine whether s/he is qualified for the post.  Then the committee votes on whether to send the nomination to the full Senate with or without a recommendation.  Then the full Senate votes .

In this case, the Judiciary Committee, of which Ted Cruz is a member, is supposed to offer suggestions and hold hearings to evaluate the nomiee's qualifications.  Then the committee will vote on whether to send the nomination to the full Senate for a floor vote.  They can send it with or without a recommendation.

The Obstruction Part
The obstruction part happens when the Senate refuses to do the advise and consent parts.

Senate Recesses

There have been legitimate questions about whether Obama can make a recess appointment.
Not right now. 

In a nutshell, there are two types of Senate recesses – sine die (Latin:  Without a day) and intersession recesses.  Recess appointments can occur only during a sine die recess.  A sine die recess occurs at the end of a session of Congress.  Each Congress lasts for two years, or for one full House term.  Each session of Congress is one year.  We are currently in the second session of the 114th Congress.  The next sine die recess will begin in late October or early November and end when the 115th Congress convenes on January 3, 2017.  That is when Obama could legally make a recess appointment.

Intersession recesses are brief and usually occur around holidays.  That's when members of Congress return to their home districts to meet with constituents.  At this writing, Congress is in an intersession recess for Presidents' Day.*  Presidents cannot make appointments during intersession recesses.
*Recess Appointments:  Frequently Asked Questions; Henry B. Hogue; Congressional Research Service; March 11, 2015

The Spectacle
See.  It says that the president will nominate Supreme Court justices (among other positions).  It does not permit exceptions in election years.  So as long as he is president, he has a DUTY to nominate.  And the Senate has the DUTY to evaluate and vote on whether to confirm that nomination.

It's ironic that Scalia firmly believed in upholding the precise words of the founders' intent in the Constitution, yet his disciples are tripping over themselves to pervert that principle.

When Cruz claimed that Obama shouldn't nominate anyone so close to the end of his term, CBS debate moderator John Dickerson asked him where he would draw the line - three months? Six? In the actual election year? Eighteen months? When? Cruz refused to answer the question.
And the hall full of republicans booed Dickerson for DARING to ask a substantive question of a presidential candidate, and member of the committee that will conduct the hearings.

Rand Paul says it's a conflict of interest for Obama to nominate a justice.  But it wasn't a conflict of interest when Presidents William Taft, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt, Ronald Reagan, and Lyndon Johnson did it.  By the way, Whose interest?
*Supreme Court Vacancies in Presidential Election Years; SCOTUSblog, by Amy Howe, February 13, 2015

It amazes me that so many Americans simply refuse to READ the Constitution. It is not a classified document.
I would say I'm at the end of my rope with these people, but I reached that a long time ago.
I don't even know where to go from here.

For more information:
Read the Constitution.  I dare you.
Senate Judiciary Committee
Supreme Court of the United States


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