Can Obama directly appoint to SCOTUS?

“The President … 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.”
— Constitution of the United States, Article II, Section 2

The President has floated the name of Chief Judge Merrick Garland to the Supreme Court, succeeding the late Antonin Scalia.

However, the current Senate leadership continues to doggedly state they refuse to meet with or even consider the candidate, much less place the candidate up for a vote. This would seem to stop the candidate dead in his tracks to his place on the Supreme Court Bench.

…or could it?

The Constitution is clear: nominations for “judges of the supreme court” must be made with the “Advice and Consent of the Senate.” However, is failure to vote for or against (i.e., taking no action) a statement waiving its right to act?

Indeed, Diskant, the senior partner of law firm of Patterson Belknap Webb & Tyler opined in the Washington Post that this is indeed the case.

“It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.  Here’s how that would work. The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland’s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.”

This would break what Diskant noted as a “logjam” in our current legislative system. but could also set a new precedent in Presidential appointments: making the Senate act in one way or the other, requiring it to exercise its duty: even if its vote is in the negative, its still exercising its duty. Could this help break the ice of the current system of partisan stonewalling, by strongarming the opposition to act?

This isn’t entirely unprecedented — when the Senate was holding proforma sessions to stonewall Obama’s nominations, particularly to the National Labor Relations Board back in 2012, President Obama unilaterally declared the Senate out-of-session and exercised his appointment power and named his candidates to the Board. While the Supreme Court later ruled these exceeded his ability, this is somewhat different — the Senate is simply not willing to act; and therefore is not approving, but not denying either — and is taking no steps to decline his nomination.

I believe this very well could be a point: by giving the Senate ample time to act, and its refusing to, the reasonable person, and a living Constitution could accommodate the notion that the Senate is willing to waive its right to stop, and therefore grants an approval by being properly notified, and declining its right to stop the nomination and appointment.

Could this set a new precedent in Presidential appointment power? How will the Supreme Court view it; as power grab, or a break in Congressional gridlock?

Further Reading:

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Signs of Pre-Revolution France becoming alarmingly apparent in America…

Anonymous_-_Prise_de_la_Bastille

Storming of The Bastille by Jean-Pierre Houël

Continued income inequality… continued loss of political capital… wage stagnation… as these problems continue — they’ve alarmingly become worse — and with that, warning signs have begun to appear.

Back in the 18th Century, we had the French Revolution. Maybe you’ve heard of it. Jocularity aside, it was a time of political and social realignment in France that saw an end to established power and an economic and social liberalization that rapidly changed the face of the nation forever.

In a time where powerful oligarchies, the Church and economic elites ran the nation, the people themselves felt pushed out of the system, felt out of control and oppressed by the aforementioned elites. With them holding the political capital of the nation, the people turned against the ruling classes and gave rise to a liberal France, Napoleon Bonaparte and a shift in French history that’s seen and felt even today.

Fast forward to the United States of America in 2014. Still reeling from major political decisions such as Citizens United v. FEC and the Hobby Lobby case — where old power bases, such as religiously conservative institutions and “Old Money” continue to gain political capital in America; add to that stagnating wages, a growing income gap, a continued gap of benefits compared to the industrial/post-industrial world AND a continued rise in the wealth of the top 10% of America… and what do you have? You have a dangerous recipe for what sounds a lot like the French Revolution.

The New York Times published an op-ed of Steven Rattner, a Brown-educated presidential economic analyst, who illustrated that the income and wealth gap — already a chasm, continues to widen. The bottom 90% continue to lose as the top 10% continues to grow. Add to this mix the Supreme Court decisions such as Citizens United and the Hobby Lobby case, along with mounting conservative pressure in America to resist a liberalization of the economy and way of life — such as same-sex marriage, and other liberal reforms.

Add to that the recent economic problems — and the near-collapse of 2007, which wiped out many jobs, and replaced them with jobs that often paid less, and required more work.  An abysmal recovery, that — while gaining traction, is doing so at an anemic pace, while the upper echelons of society continue to reap the benefits.

Sound familiar?

Could it happen tomorrow? Not likely. Could it happen if some kind of realignment doesn’t happen and the bottom-half of society isn’t allowed to catch back up? I think so. There’s gasoline being poured in what’s already a spark-filled room. Could it ignite?

Further Reading/Watching:

NYTimes Op-Ed: Rattner:
http://www.nytimes.com/2014/11/17/opinion/inequality-unbelievably-gets-worse.html

YouTube: Nick Hanauer: Warning to Plutocrats: http://www.ted.com/talks/nick_hanauer_beware_fellow_plutocrats_the_pitchforks_are_coming?language=en

The Average American Taxpayer pays… WHAT?

If you’re a taxpayer in the United States, you may find it interesting how much you actually pay to businesses and other interests you already pay money to…

Thanks to some compiling by Moyers & Company, and a couple of other sources; I’ve put together a list:

– A policy analysis from the Cato Institute from 2012 shows that the United States Federal Government loses about $100 Billion a year to corporate subsidy, on everything from energy, to the food and housing industries.  With the methodology of 115 million families, that’s over $800 a year.

– The State and Local Governments themselves are different picture.  The New York Times ran an investigation that determined that State and Local (i.e., the County and City/Town level) gave on average $80 Billion.   That adds up to be almost $700 per year.

– Retirement Banking Fees are another hefty loss for taxpayers — on average costing over $350 per year; which assumes a 1% management fee per year of one’s retirement fund, and a middle-range percentile retirement fund amount as cited by the Economic Policy Institute was assumed to be about $35,000.

– A report by the International Monetary Fund reports that over $83 Billion winds up in interest payments on loans and banking.  That accounts to $722 per year.  A further sobering fact: the five wealthiest banks in the world, JPMorganChase, Bank of America, Citigroup, Wells Fargo and Goldman Sachs account for THREE QUARTERS of these subsidies!

– Overpriced Medications were a surprise to me on this list — while the notion itself was not, the amount certainly was.  A study conducted by the Center for Economic and Policy Research found that US drug patent monopolies raises the price of prescription medications in the US by over $270 Billion per year!  That translates to over $2000 per year.

– $870 per year goes to corporate tax subsidies, which total about $100 Billion per year, as mentioned by The Tax Foundation.  This includes everything from depreciation, and even experimental tax credits.

– Corporate Tax havens are a very serious problem.  Indeed, the US Public Interest Research Group found that the average taxpayer family paid $1231 per year to offset the losses by those [such as large banks and wealthy individuals] who offshore their monies to avoid taxation.

According to my calculations, that’s $4873 PER YEAR.  Almost five thousand dollars; assuming an average income of about $50,000.

Consider these numbers, when one looks at what they pay out for social programs:

The Examiner released some information in 2012 about what Americans pay in social programs, such things as Education, etc.  A complete list can be found at that link, but leaving out the costs of Defense [as the Military Contract Industry is another racket in and of itself…], the costs turned out to be LESS than $500 PER YEAR.  This accounts for everything including Veterans Benefits spending, Housing, SSI, and even things like our contributions to the Railroad Retirement Fund!

…who should you *really* be mad at when it comes to who can’t afford what?  Where *IS* the “Big Government,” really?  I’ll let you decide.

I freely admit, I’ve abridged *some* information — mostly, related to Defense in Social Spending, but that, to me, doesn’t count…  and even then, admittedly, is only another $250 per year.  I also admit, I rounded *UP* on those figures — so the *actual* costs for Social Programs, are ACTUALLY a little lower.   But I’m a fair guy.

All of a sudden, the political cartoon above isn’t so ridiculous, is it?

I want to especially thank Moyers & Co., and Paul Buchheit for their work on compiling some of this data.

For Behold: The power of political incumbency?

Cynthia Brim, a Cook County, Illinois judge was suspended in 2012, after a series of bizarre incidents wound up having her declared “legally insane.”

cynthia-brim

Judge Cynthia Brim

While the board investigating this incident (a panel made of two judges and two civilians) continue to investigate and determine her plausibility to stay on the bench, not only is she continuing to collect her nearly $200,000 a year salary while on suspension — she’s since won RE-election to the bench.

Reportedly having been hospitalized for mental-related illnesses nine times since 1994, including after having gone catatonic during an official proceeding, the major problem came after she assaulted two Deputy Sheriffs; one was struck by her, and another was thrown a set of keys in an allegedly dangerous manner.

While her case continues to be evaluated, she continues to serve as a suspended judge — meaning she takes no cases, but receives all the pay and honors of a member of the bench; and indeed, has since been RE-elected.

Does this say something about the power of political incumbency?   I encourage you to do your own research and find out.