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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A Government Shutdown… what it means, and why you should care…

download“Due to the failure of Congress to enact appropriations for fiscal year 2014, Office of Management and Budget Director Sylvia Mathews Burwell tonight directed agencies to execute their plans for an orderly shutdown of the Federal government.”

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Trans-Pacific Partnership — what’s the deal?

Seal of the Office of the United States Trade ...I’m deeply disturbed by something Senator Elizabeth Warren has brought to the floor of Congress just recently.

The US Trade Representative is currently conducting negotiations on renewing a trade agreement with several allied nations, called the “Trans-Pacific Partnership.”  Historically, and even under the Bush Administration, this had Congressional oversight.  Apparently, under the Obama Administration — the Administration who’s buzzword is ‘Transparency,” that’s no longer the case.

The US Trade Representative is REFUSING Congressional requests for review — in any capacity, including “scrubbed” versions, with individual country names redacted, but the policy proposals visible.

Why would a treaty involving commerce, and indeed, including representatives from companies like Bank of America, Comcast, TimeWarner, be so secretive?

Indeed, the only Representative in Congress who’s SEEN the agreement, has said the following:

Florida congressman Alan Grayson.

“There is no national security purpose in keeping this text secret.”
 — Represenative Alan Grayson (D-FL)

Repeatedly asked for the text that Senator Warren refers to, she, and Congress, have been categorically DENIED.  Why is the US Trade Representative not allowing for either a) Public transparency or b) Congressional transparency when the only member of Congress YET to review it, says there is no concern for National Security?

“…’transparency would undermine the Trade Representative’s policy to complete the trade agreement, because Public Opposition would be significant.’   In other words, if the Public knew what was going on, they would STOP it.”
 — Senator Elizabeth Warren, quoting the US Trade Representative

“If transparency would lead to widespread public opposition to a trade agreement, then that trade agreement should not be the policy of the United States.”
— Senator Elizabeth Warren

See her speech to Congress here.

SOPA + PIPA + CISPA = Congress selling out?

ImageFor at the third time, the Congress in the United States is attempting to circumvent the privacy rights of its citizens on the internet.  The first two attempts, the Stop Online Piracy Act and PROTECT IP Act failed in Congress because of overwhelming negative feedback from constituents that, was indeed so strong — that even the co-authors wound up pulling their support of the bill.

Why do Representatives in Congress keep trying to shove this type of legislation through?  Is it because of issues that Congress says, which is everything from intellectual property protection to the enforcement of trade embargoes.  OR…

SOPA author Congressman Lamar Smith, a member of the House representing the 21st District of Texas, received almost US$ 2 Million in the last reporting period, according to OpenSecrets.org.  Among his Top 5 Highest Contributors?  CC Media, Comcast and TimeWarner.  What do these companies have in common?  Oh!  Intellectual Property!

Republicans in the United States often argue that “big government” is bad for business — that “big government” today is the basis of why the American economy can’t gain significant traction post-The Great Recession.

However, government in business affairs is okay, on the other hand, when the businesses say it’s okay, apparently.  Fund a Congressman’s campaign — and all of a sudden, you can now write your own legislation, which you hand over to the Congressman’s office, and he places in the ballot box for you.  Sounds preposterous, right?

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Rep. Rachel Burgin     (R-FL)

Sadly, it’s not as preposterous as you may think.  Recently, a Congresswoman from the State House of Florida submitted a Bill for consideration.  In her haste to do so, however, she forgot to remove the cover sheet of the email that it came through.  Rachel Burgin’s blunder blew open the fact that the American Legislative Exchange Council actually WROTE the Bill, and gave it to Burgin to submit, to which she did… without even removing the proof that SHE didn’t write it.   [The Bill can be seen here, in it’s original format, as she submitted it — the name of ALEC is plainly visible on the first page…]

Is this an example of the leadership exhibited by our Members of Congress?  While they can’t come together to work out issues of Party and Partisanship, they quietly collect campaign contributions, and then do their bidding by submitting Bills that they write, in the name of the Representative or Senator they buy and sell like Stocks on an exchange?