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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CISPA passes in a closed-door session… uhh…

cispaSOPA failed to pass last year because of a MASSIVE internet uproar that made it so politically toxic, even co-authors pulled their support.

This time, John Boehner‘s House Intelligence Committee is doing a good job of keeping it’s successor, CISPA, very quiet — and indeed, passing it with as little noise as possible.

Passing in a vote of 18-2 in the House Intelligence Committee, one of the dissenters to the bill, Rep. Jan Schakowski (D-IL) specifically voted against it, because she wished to attach riders to the bill that, among other things:

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Rep. Jan Schakowski (D-IL)

“…would have strengthened privacy protections, ensured that consumers can hold companies accountable for misuse of their private information, required that companies report cyber threat information directly to civilian agencies…  I strongly agree with the need to enact effective cyber-security legislation… but this bill doesn’t sufficiently protect individual privacy rights.”

When she proposed these amendments above, she was overruled in Committe, saying that the amendments were not acceptable.  Moreover — the bill amends the National Security Act of 1947, a law that, while arguably, needs constant “boning up,” to keep the law up to date with those who would go “around the law” to harm American citizens.

If this is such a horrible problem — particularly with American citizens, why is a warrant unnecessary?  Why are your browsing histories, your private email, and your other digital rights now any less meaningful than your other privacy rights?

Law Enforcement needs a warrant to enter your home… and right now, Law Enforcement needs a warrant to access your private documents, browsing history, and your other private digital information.  CISPA, essentially says, “no longer necessary.”

I find this highly disturbing.  Does anybody else?  If you’re as disturbed by this as I am, call your members of Congress, both the Senate AND the House — and demand a NO vote on this nonsense.

Personally, I think they don’t get to play with privacy rights on the internet until they fix… oh, I don’t know… THE DEFICIT?  Maybe the Fiscal Cliff disaster, too?

A good video with further information -> The Young Turks – 12 April 2013: “What Privacy?  CISPA Passes in Closed Door Vote.”

To French Gay Marry; or to Not French Gay Marry…

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The French Sénat

The United States isn’t alone in it’s battle for marriage equality.  The lower house of France just overwhelmingly passed a resolution calling for gays and lesbians to be given the right to marry.  The issue now moves to the upper house, the Senate of France, or Sénat du française.

While the Socialist majority controls an overwhelming number of seats in the National Assembly (the lower house) it carries only a small margin of control in the Senate — which of course, brings out the need for the  Socialist Party, which includes French President François Hollande; to get every vote in the Senate as they can — if they want to see the issue move forward.

Engineer Driss Houat, 69, told CNN Thursday he opposes the measure.

quote-open“I am completely against it because God created man and woman so that they could be married. Not for anything else. It’s absurd for me to see this bill pass,” he said.

But Myriam Duru, 37, a manager at a Tommy Hilfiger store, disagrees.

quote-open“I am Muslim, so I believe in God. I think it’s not a problem for me to accept. I don’t understand people who think that God exists and can say ‘I’m against the happiness of people,'” she said.