Patterico's Pontifications

2/14/2016

Does the Senate Have to Give Obama’s Nominee a Vote?

Filed under: General — Patterico @ 12:14 pm



The answer is no.

I’ll let the pundits spend hours, days, and weeks arguing out the precedents and making their little partisan cases. I have zero interest in engaging in all that.

My message is very simple: Payback is a bitch. We control the Senate, so you lose.

But look. We’re reasonable people. If you want to appoint an originalist in the mold of Antonin Scalia — a man confirmed by the Senate in a vote of 98-0 — we’ll certainly consider that nomination.

Otherwise, pound sand.

108 Responses to “Does the Senate Have to Give Obama’s Nominee a Vote?”

  1. I started to write something different for the last line. But I want to provide a better example than a Donald Trump.

    Patterico (d5f843)

  2. Apparently, it may not matter. McConnell has the Senate in an official 11-day recess.

    http://pjmedia.com/instapundit/226701/

    Kevin M (25bbee)

  3. And I reiterate what I said in the debate thread. Even I, with as little respect as I have for the GOP leadership, can’t imagine the GOP allowing a vote on an Obama nominee. The fallout would be unlike anything I’ve seen in my lifetime.

    Patterico (d5f843)

  4. If Obama makes a recess appointment in the next few days, go long on pitchforks and torches.

    Patterico (d5f843)

  5. So does the moratorium continue if a Democrat wins in 2016 but the Republicans control the Senate. We should just get used to a 8 person court, right?

    DavidWilson (d7dde7)

  6. No, the senate majority doesn’t have to give the nominee a vote. This would not be a filibuster, just the majority exercising its right to set its own calendar and priorities.

    However I think the senate should give 0bama’s nominee a vote in due course, after the usual round of hearings, which will take a few months. And, assuming that the hearings will have shown this person to be unsuitable, the majority should vote no. Repeat with the second nominee, and again with the third, if it gets that far. No obstruction. Models of cooperation. He still won’t get a nominee in.

    Milhouse (a93111)

  7. My message is very simple: Payback is a bitch. We control the Senate, so you lose.

    Shorter Patterico: It’s called “advise and consent.

    Bill H (dcdd7b)

  8. No, if a Democrat wins in 2016 a compromise will have to be reached.

    Milhouse (a93111)

  9. And yes- this IS an effing hill to die on.

    Bill H (dcdd7b)

  10. No, at that point the Senate simply has to get the best candidate it can. It does not have to accept anyone — the Dems didn’t accept Bork or Carswell or Haynsworth.

    Kevin M (25bbee)

  11. Nowhere does it say that “consent will not be unreasonably withheld.”

    Kevin M (25bbee)

  12. Too bad that Bork is advanced in age. I say renominate him, watch the left explode.

    Bill H (dcdd7b)

  13. BTW A recess appointment now would last until January 4, 2018. NOT 2017.

    From the Congressional Research Service whitepaper:

    “A recess appointment expires at the sine die adjournment of the Senates next session. In practice, this has meant that a recess appointment could last for almost two years. Where the President has made a recess appointment between sessions of the same or successive Congresses, this appointment has expired at the end of the session that next convened. Where he has made the appointment during an intrasession recess, however, the duration of the appointment has included the rest of the session in progress plus the full length of the session that followed. At any point in a year, as a result, by making a recess appointment during an intrasession recess, a President could fill a position not just for the rest of that year, but until near the end of the following year.

    https://www.fas.org/sgp/crs/misc/RS21308.pdf (page 7)

    Kevin M (25bbee)

  14. This is a primary reason why the recess appointment power should clearly be limited to The [intersession] Recess.

    Kevin M (25bbee)

  15. Too bad that Bork is advanced in age.

    Actually, he has stopped aging, having died in 2012.

    Kevin M (25bbee)

  16. Too bad that Bork is advanced in age.

    Very advanced.

    Milhouse (a93111)

  17. Remind me if you would of procedure: a judicial nominee can be killed by a negative vote in committee, right? If the Judicial Committee opposes the nominee by a partisan 11-9 margin, then it takes the consent of the Senate Majority Leader to bring that nomination to the floor. If that’s the case then we would expect “no” votes from Grassley, Hatch, Sessions, Cronyn, Lee, Cruz, Flake, Vitter, Perdue, Tillis, and Graham (oh, God); and “yes” votes from Leahy, Feinstein, Schumer, Durbin, Whiehouse, Klobuchar, Franken, Coons, and Blumenthal. Even if Graham stabs the GOP in the back, McConnell can easily say that a 10-10 deadlock doesn’t meet the threshhold of advancing the nominee to the full Senate.

    JVW (9e3c77)

  18. Obama can have our offer now if he likes. Our offer to Obama is this: nothing. Not even the fee for the gaming license, which we would appreciate if Obama put up personally.

    Patterico (d5f843)

  19. http://pjmedia.com/instapundit/226701/

    well, this is disturbing. they are not in pro forma session.

    dmh (08e662)

  20. Isn’t it true that a recess appointment can be invalidated upon the Senates reconvening?

    papertiger (c2d6da)

  21. Isn’t it true that a recess appointment can be invalidated upon the Senates reconvening?

    For administrative positions I believe they carry over until the next Congress convenes. That’s why the Democrats ended up having to put up with John Bolton at the United Nations. Is it the same deal with judicial appointments?

    JVW (9e3c77)

  22. Perhaps they can be invalidated, but it might take a supermajority to do so.

    JVW (9e3c77)

  23. 6. …However I think the senate should give 0bama’s nominee a vote in due course, after the usual round of hearings, which will take a few months. And, assuming that the hearings will have shown this person to be unsuitable, the majority should vote no. Repeat with the second nominee, and again with the third, if it gets that far. No obstruction. Models of cooperation. He still won’t get a nominee in.

    Milhouse (a93111) — 2/14/2016 @ 12:27 pm

    Are you really this naive? Have you not been paying attention for the past 7 years? The Republicans should not walk into Obama’s trap. Obama knows any nominee he’d prefer is DOA. So he’ll just play politics with his nominations.

    And score points for the Democrats if the Republicans are stupid enough to play his game.

    …And, assuming that the hearings will have shown this person to be unsuitable, the majority should vote no…

    Yes, of course. The Democrats have been a bottomless well of comity and respect for the valid concerns of Republicans, haven’t they? They just show all kinds of respect for the deep policy differences between the GOP and, say, Barack Obama.

    Or, have you not noticed the scenario goes like this.

    Republican/Conservative carefully lays out in detail how far Obama’s proposals differ from their own, and why they can’t support the President’s policies.

    And how then does the Democrat respond? By advocating for the President’s policies on their merits?

    No. Then the Democrat responds by calling the Republican/Conservative a racist who is only opposed to Obama because they can’t stand seeing a strong black man in the WH.

    The GOP gets its @$$ handed to it every time by failing to recognize all the Democrats care about is power, and gaining it by hook or by crook. There will be no such thing as good faith debate about the merits or the suitability of Obama’s nominees, no matter how meritless or unsuitable you can show his nominees.

    Yeah, we all know Obama will nominate some communist activist judge who has a record of siding with cop killers. But that nominee will also be a “wise Latina” or “strong black woman” who can “empathize” with the under served in our society because she also happens to be a lesbian and confined to wheelchair.

    Guess what Obama, the Democrats, and the LHMFM, who always relish every opportunity to portray Republicans/Conservatives as rabidly hating everybody except straight white xtofascist men, are going to say is the real reason those racist women hating homophobes are rejecting these nominees.

    Go ahead, guess.

    Tell me how it’s a smart move to walk into this ambush? Again?

    The Senate has not approved a nominee for a Supreme Court vacancy, one who was both nominated and confirmed, in an election year since Benjamin Cardoza in 1932. It’s a wise precedent and we should continue to follow it. Because it’s the high road; that takes the politics out of the process.

    The electorate isn’t going to give the GOP any credit for seriously weighing the suitability of Obama’s nominees. Not with the Democrats and the LHMFM (but I repeat myself) screaming that the only reason they’re rejecting (Marxist

    We can wait until the people have spoken in November, and let the next President nominate Scalia’s successor.

    Steve57 (f61b03)

  24. Oppose a Senate vote at every step in the process, delay, delay, delay. Wait for Obama’s nominee to be announced, set a date for committee consideration as far into the future as possible, draw out the hearings into multiple sessions each one separated by lengthy breaks, delay, delay, delay. Finally, reject the nominee so that McConnell can consult far and wide on the issue of bringing a vote to the Senate vote, or not. Delay, delay, delay.

    ropelight (0bdb18)

  25. I don’t know anything about this (insert name of Obama’s SCOTUS nominee here) I don’t know what he does, I don’t know where he’s from.

    Bugg (fa64ec)

  26. A recess appointment lasts for the balance of the CURRENT year and ALL of the following year, until Jan 4 following. An appointment now would last until Jan 4, 2018.

    Kevin M (25bbee)

  27. I was going to say before my laptop acted of it’s own will:

    The electorate isn’t going to give the GOP any credit for seriously weighing the suitability of Obama’s nominees. Not with the Democrats and the LHMFM (but I repeat myself) screaming that the only reason they’re rejecting (Marxist) Kamala Harris is because they hate women and minorities.

    Instead of playing along with their game and trying to argue that, no, their are real reasons why Kamala Harris is unsuitable to be a Supreme Court Justice (which will just be further proof of our racism, if you know how leftists think) just don’t play the game.

    Turn it around. Since we know who they’re going to nominate, people who will advance Democratic party political memes such as the War on Women! point out that’s exactly the kind of partisan politics that shows the only way to remove politics from these decisions is wait for the next President. Point out that it could be very well be Hillary! or Bernie who is the next President. But even so the nominees won’t be chosen purely with an eye toward effecting an election eight and a half months out. As Obama will be doing.

    Steve57 (f61b03)

  28. Ropelight —

    No need to quote Trump, who doesn’t understand the procedure anyway. Just refuse to hold a hearing and refuse to hold a vote. Ignore it. If somehow it comes to the floor, 41 Republicans out of 56 can filibuster.

    Kevin M (25bbee)

  29. Kamala Harris will not accept a doomed appointment when she has a lock on a Senate seat.

    Kevin M (25bbee)

  30. before they do hearings on a new judge they need to do hearings on how the old one died i think

    happyfeet (831175)

  31. Actually, he has stopped aging, having died in 2012.

    Kevin M (25bbee) — 2/14/2016 @ 12:44 pm

    Very advanced.

    Milhouse (a93111) — 2/14/2016 @ 12:44 pm

    This is my red, embarrassed face. I had forgotten all about that. Thanks, guys.

    Bill H (dcdd7b)

  32. Just say no. Have somebody gavel the Senate to order every day. Call it back into session if you have to. Vote to suspend any rule that says you can’t. Just do it.

    f1guyus (9cbd15)

  33. And when the Dems get all pi***y, ask them why they subpoenaed Robert Bork’s video rental records.

    f1guyus (9cbd15)

  34. I know I’m not a legal type other than in passing, etc.; but, perhaps a plainer reading of the text is sufficient?

    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.

    If a 10 day break is sufficient to be considered a recess (a disputable assertion) then it could just as easily be argued that the appointment would end at the beginning of the next 10 day break (recess / session).

    I would tend to put forth that the senate is in session (regardless of breaks) until they adjourn and do not plan to meet again that year – perhaps even that election cycle. After all, Congress was not intended to be a full time, year round job. They were intended to go and take care of business as quickly as they could and get back to their normal jobs / lives.

    My presumption as to why it expires at the end of their next session is so that the position can be properly filled during their next session.

    Dilligas (389b02)

  35. who would be sleazy enough to accept a recess appointment

    i’d love to know

    happyfeet (831175)

  36. before they do hearings on a new judge they need to do hearings on how the old one died i think

    I hear that some think it might have been poison.

    Kevin M (25bbee)

  37. Have somebody gavel the Senate to order every day.

    I agree. There is actually a resolution saying that they need Reid’s agreement to do that, but what the heck, do it and then if he complains, tell him to make a point of order.

    Kevin M (25bbee)

  38. #29, Kevin, standing belligerently against the combined forces of the Democrat party and their print and broadcast propaganda wing is to become a fixed target, standing naked, inviting undecided voters to judge the GOP arrogant and intransigent. Better to bend a little, deflect the heaviest blows, and survive a lengthy and bitter storm of vicious criticism.

    ropelight (0bdb18)

  39. yes yes it’s very very likely he was murdered

    cui bono i wonder

    happyfeet (831175)

  40. A recess appointment lasts for the balance of the CURRENT year and ALL of the following year, until Jan 4 following. An appointment now would last until Jan 4, 2018.

    Kevin M (25bbee) — 2/14/2016 @ 1:19 pm

    Even if Obama has an appointment already teed up and ready to go, I’m doubting very much it would be a recess appointment.

    Bill H (dcdd7b)

  41. food stamp sure had a dandy little speech teed up and ready to go

    he didn’t look surprised by this at all

    happyfeet (831175)

  42. 79 year old guy dies alone in his room at a private residence.

    I know there will be pomp and circumstance because he’s a Supreme Court Justice, but there won’t be any candlelight vigils unless they find bullet holes.
    That’s just the fact.

    papertiger (c2d6da)

  43. Never rule out the Corksoaker Proxy.

    Colonel Haiku (2601c0)

  44. papertiger, I think Patterico’s trying to find you so he can ask you about your reaction to Trump’s pathetic attacks on GW Bush last night.

    Cruz Supporter (102c9a)

  45. Obama quoted the wiki for Justice Scalia.

    You want to call that being ready to go with a dandy little speech, I did the same in a thread down yonder.

    papertiger (c2d6da)

  46. here’s a look at some of the people and groups who had an interest in seeing Mr. Scalia dead

    happyfeet (831175)

  47. If Scalia gets an autopsy like the one JFK got, or didn’t get, or like the one Ron Brown got, then there’ll be vigils aplenty.

    ropelight (0bdb18)

  48. On the constitutional issue, I think the case can be made that Obama has to nominate someone (and he’ll tout this loud and often). I’m also going to guess that he’ll make things as hard for the Republicans as he can, by nominating a moderate, maybe even a Republican moderate, and certainly a minority (he wants to play the race card).

    For the Senate, I think there’s a strong case that advise and consent does include “ignore” if they do not consent to the choice.

    I also predict that when the key vote comes, Rubio will skip it like he did the omnibus. So will several non-candidate R senators. If they do fold, my guess is they’ll simply go into a recess and give Obama the window of opportunity to make a recess appointment, to which they’ll feign shock and surprise.

    I sincerely hope Patterico is right that the Senate Republicans will stand their ground. However, I just don’t have the faith in them he does (though I fully agree that the consequences would be apocalyptic for them if they fold). I hope I’m wrong and Patterico is right.

    Arizona CJ (da673d)

  49. Arizona CJ,

    How in the heck does nominating a “Republican moderate” advance the ball down the field for Obama? He wants a progressive on the Court.
    If he were to nominate a “Republican moderate,” the GOP can stonewall and delay, and then say, “See? He nominated a Republican judge, and we’re still not going to confirm him because we are steadfast that a lame-duck President should not get to make this decision. We are going to defer to the next President—just as we said we would.”

    Cruz Supporter (102c9a)

  50. @ Cruz supporter # 49,

    Nominating someone who’s a registered Republican but a liberal leaning “moderate” would be excellent political optics for Obama, making it very hard for the senate to reject. A political win for him if they do, a new Justice Stevens if they don’t. That’s just a guess on my part on how Obama might play it.

    However, there’s now a very real chance that point is moot.
    http://pjmedia.com/instapundit/226701/

    Short version: does Obama have, until Feb 22nd, a window of opportunity to make a recess appointment? Yes, because the senate is in recess. My guess: he’ll do so on Friday, and if so, it’ll be a Sotamayor clone.

    I sure as heck hope I’m wrong on everything above.

    Arizona CJ (da673d)

  51. Obama will nominate a radical woman forcing Republicans to fight it. This will play into the hands of Clinton as we all know the Republicans are responsible for the War on Women. And they are mean and nasty too.

    AZ Bob (e02f2a)

  52. What if the Dems retake the Senate? Is 17 days enough for Schumer to nuke the filibuster and ram through an Obama appointee?

    SAZMD (f107a7)

  53. roobs is putting his seat in play cause being a senator is not fulfilling enough for him

    happyfeet (831175)

  54. The following excerpt is from BloombergPolitics:

    Scalia’s Death Undercuts Conservative’s Hopes…

    Justice Antonin Scalia’s death will have an immediate effect on some of the country’s most contentious legal questions, undercutting conservative hopes of winning sweeping victories in pending U.S. Supreme Court cases on abortion, immigration, affirmative action and unions.

    ropelight (0bdb18)

  55. what that tells you Mr. ropelight is that it’s highly unlikely that is was a conservative that murdered him

    happyfeet (831175)

  56. *it* was i mean

    happyfeet (831175)

  57. 29. Kamala Harris will not accept a doomed appointment when she has a lock on a Senate seat.

    Kevin M (25bbee) — 2/14/2016 @ 1:23 pm

    I was just using her as an example because her name was the first one that popped into my head as Obama’s “type.” Total left wing ideologue and someone he knows would never be confirmed. But black and a woman and therefore good demagoguery material.

    Steve57 (f61b03)

  58. Regarding Scalia’s passing: I was in Palm Springs yesterday at a chichi modern art soiree. I overheard a man and his boyfriend fairly chortling with glee about the news just announcing Scalia’s death. I was shocked because I hadn’t yet heard about it. This couple, and the group they were with, were absolutely elated as they called Scalia an “ignorant d*ckweed” who was certainly “burning in hell like he deserves after what he’s done to us”. This is what Conservatives are up against. The left is very, very clear about how important this vacancy is, as much as we are on the right. So when Chuck Schumer, Patrick Leahy, CNN’s Dana Bash and Meet the Press’s Chuck Todd go on the Sunday morning talk shows like they did this morning, to try and guilt and shame the likes of Rubio and Cruz, and even Trump, that there is a *duty* to have hearings on every name put forward by the president, it’s easy to see once again see whose in bed with whom. It makes me hope that McConnell, for once, can stay true to his word. He’s dreadfully out of practice, though.

    Dana (86e864)

  59. This should make for a nice diversion from the Trump semantics during the next upcoming primaries. Ted needs to take it down a notch to a dummies guide to what is NOW at stake. I agree with those that say Cruz needs to keep abortion slightly off the radar/campaigned trail. Once a conservative gets in them he can work on the abuse of the laws of abortion. No nominee will get elected running on abortion. But the Second Amendment crosses party lines and Cruz needs to send home just how much judicial experience he has had and how he would make this a choice for the people.

    JRT for CRUZ (bc7456)

  60. The left is very, very clear about how important this vacancy is

    just as rumors have always circulated about BO’s lifestyle

    JRT for CRUZ (bc7456)

  61. Did someone poison Scalia?

    JRT for CRUZ (bc7456)

  62. Ted Cruz better get a food taster asap… aren’t there dogs now that can sniff out poison

    JRT for CRUZ (bc7456)

  63. Judiciary Chairman Grassley will be the first line of defense. Nothing will happen if the Judiciary Committee won’t consider Obama’s nominee, which is far preferable than depending on McConnell to hold the line. But I worry about Graham and Flake and Cornyn and Vitter. I don’t know where their loyalties lie.

    DRJ (15874d)

  64. is Bo’s private forensics handling the autopsy

    JRT for CRUZ (bc7456)

  65. So here is where we’re at, this from a NYT essayist:

    Brent Staples Verified account
    ‏@BrentNYT

    In a nation built on slavery, white men propose denying the first black president his Constitutional right to name Supreme Court nominee.


    Liar!

    But of course, it sounds so much better to lie that the black man is being kept down rather than tell the damn truth.

    Here is his desperate attempt to wiggle out of it:

    I will try this one more time: Lawmakers can delay, reject all they want. But they show contempt for the constitution

    Someone needs to educate himself on the role of the president vs. the role of the Senate when it involves a nominee, hearing, and appointment to the SC. Further, he should google Bork, Robert.

    Dana (86e864)

  66. Dana, while you were in Palm Springs, did you hear any chatter about the Obamas perhaps buying a particular house in Rancho Mirage? That seems to be the conventional wisdom. Not that “wisdom” and “Obamas” belongs in the same paragraph. (LOL)

    It’s a very sharp looking mid-century modern home which the Palm Springs area is so famous for. It’s good to be King. It’s just not good for the rest of us.

    Cruz Supporter (102c9a)

  67. The awkward phrasing suggests that Mr. Staples doesn’t have a lot of experience discussing this topic. I’m pointing specifically to the “right to name Supreme Court nominee.”
    To name a nominee? Wut?
    Who said he doesn’t get to select a nominee?
    Obama has a right to nominate someone, but not to get them confirmed. That’s up to the Senate. And they get to make their own calendar.

    If we’re not going to honor the separation of powers, why not just have a King?

    I bet if we do some fishing, we’ll find a lot of ironic statements by the lamestream media vis a vis President Bush’s Supreme Court nominations a decade ago. I specifically recall a lot of whining by Democrats that it’s Bush’s obligation to nominate someone they can confirm.

    Cruz Supporter (102c9a)

  68. A recess appointment lasts for the balance of the CURRENT year and ALL of the following year, until Jan 4 following. An appointment now would last until Jan 4, 2018.
    Kevin M (25bbee) — 2/14/2016 @ 1:19 pm

    How can that last into 2018? A new Senate will be sworn in, in 2017, and the recess appointment can not last past that point.

    Yoda (feee21)

  69. of course, they were denial of any bush administration nominees, when they got the driver’s seat,

    http://twitchy.com/2016/02/14/spox-argues-sen-schumers-stance-in-2007-is-not-the-same-as-upcoming-gop-obama-scotus-fight-but-it-really-is/

    narciso (732bc0)

  70. he was once a Times correspondent, and he doesn’t know the word nominate, they are really at the chris rock level of oratory, from his magnus opus, ‘head of state’

    narciso (732bc0)

  71. Alas, “we” don’t control the Senate. Mitch McConnell does. And he is the best Senate Majority Leader Obama has ever had.

    There is absolutely no reason to believe that McConnell will stand by any pledge to stonewall a SCOTUS nomination.

    This “opportunity” for Obama is far too important to let anything stop him from appointing another Marxist to SCOTUS.

    WarEagle82 (3f92a9)

  72. A new Senate will be sworn in, in 2017, and the recess appointment can not last past that point.

    Doesn’t matter. The original language had to do with a time when Congress would meet from January to May, then go home until next January (The Recess). If a vacancy came up, the president would appoint someone who would serve the balance of the recess and the following year. Still works that way.

    The constitution says “the end of the NEXT session” not “the end of the CURRENT session”. Also, go read the link I provided, which is what Congress thinks it all means.

    Kevin M (25bbee)

  73. And he is the best Senate Majority Leader Obama has ever had.

    Ah, no. He’d prefer Reid. But there are lots of Republicans he’d like less than McConnell.

    Kevin M (25bbee)

  74. Recess appointments are for Article II appointments. Not Article III which are for life. Who came up with this?

    nk (dbc370)

  75. Rather than argue over the length of a recess appointment, isn’t it really the inability to break a 4-4 tie, rendering the SCOTUS effectively unable to decide, or even take-up issues involving the Obama Administration’s string of stonewalling, usurpations, and misconduct prior to the election?

    ropelight (0bdb18)

  76. therein lies the real question, a tie would uphold hanen, would reward the teacher’s unions, and a whole host of issues, the problem with roberts is not that he occasionally upheld the rule of law, but more the occasions when he hasn’t.

    narciso (732bc0)

  77. Any case that was already heard by Scalia is going to have to be reheard. Likely next term, new justice or not, because of caseload considerations. Meantime, status quo.

    nk (dbc370)

  78. A 4-4 tie has the effect of upholding the lower court’s ruling.

    John Hitchcock (0208ff)

  79. When Thurgood Marshall passed away, wasn’t there an insistence by Jesse Jackson Incorporated that a black jurist must replace him? And wasn’t there an insistence that since it was a “liberal” seat on the Court, that if it wasn’t replaced by a black jurist, that it should at least be filled by a “liberal” jurist?

    If that’s the standard, then isn’t Barack obligated to nominate a conservative?

    Cruz Supporter (102c9a)

  80. cs, they are like alice’s red queen, whatever argument they need to win at that time, when it was time to impugn reagan with a swarm of independent prosecutors, they quoted morrison, then with clinton they cited scalia’s dissent in same, same with obama, schumer, et al,

    narciso (732bc0)

  81. nk (#74) — My initial reaction was like yours, nk, but upon looking it up, I quickly determined otherwise. There is a very long history of recess appointments to the SCOTUS, from the days when Congressional recesses reflected necessary travel delays and were therefore more rigid and longer. Now of course, recesses are purely a matter of convenience, as determined by Congressional leadership in each chamber.

    But for instance, Eisenhower recess-appointed William Brennan just before the 1956 elections to shore up Ike’s position with Northeastern Catholics, and then Brennan was promptly re-appointed and confirmed in 1957. Of course, we all paid for that political calculation for many years to come.

    This is a pretty good discussion of where the recess appointment power stands after the landmark NLRB v. Noel Canning decision in 2014, which most observers thinks leaves the landscape pretty clear, meaning that it leaves to the Congressional leadership the effective power to prevent recess appointments through a minimal exercise of kabuki theater.

    Beldar (fa637a)

  82. obama will select Mohamhead as the next justice.
    With team epublican signing off on it.

    mg (31009b)

  83. R
    just checking to see if I was still in the bullpen of moderation.

    mg (31009b)

  84. Thank you, Beldar.

    Sorry, guys. Too much Gogol, not enough Westlaw. 😉

    nk (dbc370)

  85. I’ve been hoping someone could give me a good reason to dismiss the nightmare scenario that’s been haunting me since I heard the news of Mr. Justice Scalia’s passing. In my nightmare:

    * Pres. Obama resigns.

    * Pres. Biden instantly appoints Obama to the Scalia vacancy.

    * Biden announces he’s running for POTUS as the sitting incumbent and savior of the war-torn Democratic Party.

    * Obama respectfully declines to appear for questioning before the Judiciary Committee, telling the American public from the Rose Garden, “Is there any Senator who can possibly claim not to know enough about me already to cast a fully-informed vote? I’ve been vetted by the American electorate twice already.”

    * McConnell can’t face down the RAAAACIST clamor, which the Obama Machine would aggressively orchestrate. Think national protests on the scale and vitriol of those after the revelation in May 1970 of Nixon’s invasion of Cambodia and bombing of Laos — which produced, among other nationally influential moments, the tragedy at Kent State (which in turn no less an authority than Haldeman claims began the Nixon Administration’s paranoid slide into Watergate).

    * Enough GOP senators, including all of those up for tough reelection fights this year, cave in;

    — OR: —
    * Obama is martyred for his retirement into his cushy post-presidency, having handed to Biden the mantle of continuing the Obama Legacy, plus a big club to beat the Republicans with and rouse up the Obama Faithful in November.

    HOWEVER:

    The best way to have orchestrated this would have been for them to do it very quickly via a recess appointment. That way, during the proceedings on the nomination, he’d already be “Mr. Justice Obama” and fully entitled to wear one of those black robes over his golf shorts. It would make it seem like an impeachment battle rather than a confirmation battle.

    And the Administration announced today that it’s going to wait for the Senate to resume session next week before announcing a nominee. Which means they’ve missed the recess appointment opportunity.

    Then something else occurred to me: If Obama were a SCOTUS nominee, it would be awfully hard to keep sealed from Senate Judiciary Committee inquiry, with its subpoena power, the Obama transcripts from Occidental, Columbia, and Harvard Law that somehow we’ve never been permitted to see. And it would be awfully hard to argue that those are completely irrelevant.

    I wrote yesterday that I didn’t think Obama could be dissuaded from a scheme like this just because it would seem “too cute” to do the quid pro quo with Biden. You can’t shame the shameless; Obama has repeatedly shown (e.g., executive orders debacles) that he’s not deterred from a very raw exercise of power by mere considerations of propriety. But he might be dissuaded by concerns about reopening skeleton-filled closets that he’s heretofore succeeded in keeping shut.

    So I’ve talked myself out of my panic over the Scalia vacancy.

    Final note: Mitch McConnell isn’t following the road map handed to him by the Noel Canning decision for how to prevent recess appointments. Under those rules, we’re all exposed right now, simply because McConnell didn’t organize the damned legislative kabuki theater! That’s parliamentary incompetence, and there ought to be consequences — as in, him stepping down from the majority leadership at the end of this Congress even if the GOP holds the Senate.

    Beldar (fa637a)

  86. The way to avoid Beldar’s scenario and similar nightmares is to attack Obama now as the mastermind behind Fast-n-Furious, IRS abuse, Behghazi, and email-gate. Render him ineligible for any public office now or ever.

    ropelight (0bdb18)

  87. Ultimately, I think just Barack wants to move to Rancho Mirage so he can play golf. And pay California state income taxes!

    Cruz Supporter (102c9a)

  88. I agree. And couple his desire to preserve his “legacy”, better called “myth”, with the opportunity to become a multi-millionaire the way the Clintons did, as well.

    nk (dbc370)

  89. that horse left the barn, came back kicked the lamp, and set it on fire,

    narciso (732bc0)

  90. Do not underestimate the ambition of Barack Obama and his cadre of true believers. Their thirst for power is unquenchable. Their duplicity unimaginable by honest men.

    ropelight (0bdb18)

  91. the point about checking his ‘dark deeds,’ as he said of reagan, in his bio, also the motivation for his need to fundamentally transform.

    narciso (732bc0)

  92. Final note: Mitch McConnell isn’t following the road map handed to him by the Noel Canning decision for how to prevent recess appointments. Under those rules, we’re all exposed right now, simply because McConnell didn’t organize the damned legislative kabuki theater! That’s parliamentary incompetence, and there ought to be consequences — as in, him stepping down from the majority leadership at the end of this Congress even if the GOP holds the Senate.

    Sean Davis convincingly explains on Twitter that under the Canning decision, the current recess is exactly the length that the Supreme Court said was too short for a recess appointment (under 10 days, not counting Sundays which don’t count as days under Senate precedent).

    Patterico (d5f843)

  93. Dana:

    Brent Staples Verified account
    ‏@BrentNYT

    In a nation built on slavery, white men propose denying the first black president his Constitutional right to name Supreme Court nominee.

    Funny. I’m having a hard time locating that tweet!

    Patterico (d5f843)

  94. Shockingly, someone took a screencap! The wonders of the Internet

    Patterico (d5f843)

  95. This one is still posted on Staples’ Twitter account:

    Historians will one day pronounce the GOP’s treatment of Obama as what it is: An example of blatant, unadulterated racism.

    I wonder what historians will have to say about race hustlers who conned their way onto the New York Times editorial page by exploiting guilty white liberal editors.

    JVW (9e3c77)

  96. Rather than argue over the length of a recess appointment, isn’t it really the inability to break a 4-4 tie, rendering the SCOTUS effectively unable to decide, or even take-up issues involving the Obama Administration’s string of stonewalling, usurpations, and misconduct prior to the election?

    ropelight (0bdb18) — 2/14/2016 @ 7:09 pm

    And

    A 4-4 tie has the effect of upholding the lower court’s ruling.

    John Hitchcock (0208ff) — 2/14/2016 @ 7:31 pm

    I say putting in a recess appointment and dragging it out while nominating the most left, black, woman candidate is in the left’s best interests. Think of all those bad 9th circuit decisions that will be upheld. Think of all the damage he can do to the GOP by claiming there’re racist and on the “wrong side of history”.

    He knows he can’t get a nominee past the GOP so why not make the GOP look bad in the process?

    Tanny O'Haley (c674c7)

  97. “If Obama makes a recess appointment in the next few days, go long on pitchforks and torches.”
    All set.

    mg (31009b)

  98. Team republican has to put these democrats in their place,
    And not the left wing bomb throwing trump. Let Ted run the show.

    mg (31009b)

  99. while there are certainly things that I disagree with Patterico, this is not one of them.

    The Dems can go pound sand. I am in total agreement.

    JeffreyL (2eddb6)

  100. Patrick: No one can explain anything convincingly on Twitter, and I don’t know who Sean Davis is or how to access his convincing argument. If he convinced you, he probably could convince me — but not, never, on Twitter.

    I haven’t gotten out a calendar or my fingers, but see this, upon which I relied in my condemnation of McConnell. If I’ve falsely accused him of parliamentary malpractice on this occasion, he has my apology — but only if we can talk about the other failures I lay at his feet as part of the same conversation.

    Beldar (fa637a)

  101. he is a cofounder of the federalist,

    https://twitter.com/seanmdav/status/699263915998445568

    narciso (732bc0)

  102. Patterico:

    The blogfather also got a screen cap, including his own blocking.

    http://pjmedia.com/instapundit/226727/

    Kevin M (25bbee)

  103. That’s parliamentary incompetence, and there ought to be consequences — as in, him stepping down from the majority leadership at the end of this WEEK.

    FIFY

    Kevin M (25bbee)

  104. being with the puffington host, you never have to apologize,

    https://twitter.com/seanmdav/status/699247081358258176

    narciso (732bc0)

  105. it would be awfully hard to keep sealed from Senate Judiciary Committee inquiry, with its subpoena power,

    Khalidi tapes!

    Kevin M (25bbee)

  106. Beldar, if you look at NLRB v. Noel Canning, linked from Elizabeth Foley’s piece, you will see this in the majority decision:

    (Under Senate practice, “Sunday is generally not considered a day,” and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101-28, F. Riddick & A. Frumin, Riddick’s Senate Procedure: Precedents and Practices 1265 (hereinafter Riddick’s).)

    Milhouse (87c499)

  107. Isn’t it true that a recess appointment can be invalidated upon the Senates reconvening?

    No, it isn’t.

    I believe they carry over until the next Congress convenes.

    No, till the end of the next congressional session. We’re currently in the 2016 session, so an appointment made now would last till the end of the 2017 session.

    Milhouse (87c499)

  108. Are you really this naive? Have you not been paying attention for the past 7 years? The Republicans should not walk into Obama’s trap. Obama knows any nominee he’d prefer is DOA. So he’ll just play politics with his nominations.

    What trap? Obstructing the nomination for a year is the trap. Playing it straight is how to avoid it.

    …And, assuming that the hearings will have shown this person to be unsuitable, the majority should vote no…

    Yes, of course. The Democrats have been a bottomless well of comity and respect for the valid concerns of Republicans, haven’t they? They just show all kinds of respect for the deep policy differences between the GOP and, say, Barack Obama.

    The Democrats are the minority. They don’t get a say in what the majority does. I don’t expect anything of them.

    Or, have you not noticed the scenario goes like this.

    Republican/Conservative carefully lays out in detail how far Obama’s proposals differ from their own, and why they can’t support the President’s policies.

    And how then does the Democrat respond? By advocating for the President’s policies on their merits?

    No. Then the Democrat responds by calling the Republican/Conservative a racist who is only opposed to Obama because they can’t stand seeing a strong black man in the WH.

    And? They’re going to say that no matter what the Rs do. They’ve been saying it for the past seven years and they’re not going to stop now. But what of it? How does that affect anything? How does it invalidate what I wrote?

    There will be no such thing as good faith debate about the merits or the suitability of Obama’s nominees, no matter how meritless or unsuitable you can show his nominees.

    Not by Democrats, no. I’m not expecting any. So screw them.

    Yeah, we all know Obama will nominate some communist activist judge who has a record of siding with cop killers. But that nominee will also be a “wise Latina” or “strong black woman” who can “empathize” with the under served in our society because she also happens to be a lesbian and confined to wheelchair.

    Guess what Obama, the Democrats, and the LHMFM, who always relish every opportunity to portray Republicans/Conservatives as rabidly hating everybody except straight white xtofascist men, are going to say is the real reason those racist women hating homophobes are rejecting these nominees.

    Let them say it. The record will show the truth.

    Go ahead, guess.

    Tell me how it’s a smart move to walk into this ambush? Again?

    How does obstructing for a year avoid this “ambush”? Even if there were some high principle involved, guess what Obama, the Democrats, and the LHMFM, who always relish every opportunity to portray Republicans/Conservatives as rabidly hating everybody except straight white xtofascist men, are going to say is the real reason those racist women hating homophobes are rejecting these nominees.

    The Senate has not approved a nominee for a Supreme Court vacancy, one who was both nominated and confirmed, in an election year since Benjamin Cardoza in 1932.

    Actually Murphy, in 1940. But there hasn’t been a vacancy in an election year since then, except in 1968, when the Rs did not play obstructionist games, but rather a cross-party group of senators raised serious concerns about Fortas’s suitability for office. (This incident is often called a filibuster, but it wasn’t, because there was no majority for holding a vote. Enough Ds were concerned about him that the majority of the senate wanted to wait for more information before voting. A filibuster by definition happens when the majority want to vote but the minority won’t let them.)

    It’s a wise precedent and we should continue to follow it. Because it’s the high road; that takes the politics out of the process.

    Really? Even if it were the high road, which it isn’t, how does it do that? How does it prevent the Ds from saying exactly the same things? You seem to contradict yourself, believing that if the Rs vote against 0’s nominees because of what has come out about them in public hearings the public will believe the D claims of racism, but if they block a vote altogether, and hold no hearings, the public will suddenly disbelieve the Ds, and accept that it’s a matter of principle?! I just can’t follow the logic there. The Ds are going to say the same things regardless, so we can’t allow that to dictate what we do.

    Milhouse (87c499)


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