Democrat Senators: Ignorant or Lying About the Constitution
Ed Whelan quotes Senator Dick “Dick” Durbin lying about the text of the Constitution:
Sen. Durbin (9:35): There is no constitutional precedent for what the Republicans announced today. Not only did they say we won’t consider the President’s nominee, we won’t have a hearing, we won’t have a vote, Senator McConnell the Republican leader said “I won’t even meet with this nominee.” That has never happened before in history. The Constitution which we’ve sworn to uphold is very clear when it comes to Article two, section two. The President shall appoint a nominee to fill a vacancy on the Supreme Court and the Senate shall by advice and consent vote on that nominee. Those are not, uh, vague words. Those are words that impose a responsibility on the Senate which the republican leader is ignoring.
Those are not vague words — and also, as Whelan notes, those are not the words of the Constitution:
No, Senator Durbin, Article II, section 2 of the Constitution does not say what you claim it says. It says, rather, that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court” (and other federal judges). It nowhere imposes on the Senate a requirement to vote on any nominee.
Whelan takes apart Durbin in other ways; click the link for the rest.
Democrat Senators are unintentionally engaged in high comedy on this issue:
.@maziehirono floating prospect of impeaching Senators who back #NoHearingsNoVotes
— Mike Sacks (@MikeSacksEsq) February 24, 2016
More details on that insane idea here. Just one leetle problem:
Among the many problems with @maziehirono's brilliant proposal: Senators aren't subject to impeachment. https://t.co/BDjUhSachp
— Ed Whelan (@EdWhelanEPPC) February 24, 2016
Removal by impeachment/conviction applies only to "civil officers of the United States"–exec-branch and judges https://t.co/QgmvNwou3w
— Ed Whelan (@EdWhelanEPPC) February 24, 2016
Meanwhile we learned a couple of days ago that all the worries about the GOP caving appear to be for naught:
Key Republican senators on the Judiciary Committee emerged from a closed door meeting in Majority Leader Mitch McConnell’s office Tuesday united in their determination not to consider any nominee to replace Antonin Scalia until the next president takes office.
Tuesday was the first full day the Senate was back in session since Scalia’s death Feb. 13.
“We believe the American people need to decide who is going to make this appointment rather than a lame duck president,” said Majority Whip John Cornyn (R-TN).
When asked if they would start the process after the new president took office or if they would consider doing it in the lame duck session, Cornyn replied “No, after the next president is selected. That way the American people have a voice in the process.”
I told you. You people are so cynical!
Floating prospect that lawyers who put Esq. after their own name are pretentious clowns.
nk (dbc370) — 2/25/2016 @ 8:09 amAh Dickbar Al Durbin–the jackweed that compared US soldiers to Nazi storm troopers–can’t read? Or maybe he can read–but by default lies about what he read? Color me surprised.
The difference between pond scum and Durbin is that at least the pond scum serves some useful purpose in providing food for small fish.
Comanche Voter (1d5c8b) — 2/25/2016 @ 8:19 amEmbrace the power of “And.”
dee nile (80a45f) — 2/25/2016 @ 8:19 amEven Anderson Cooper on CNN was decrying the “hypocrisy on both sides” on this issue last night, noting that the Republicans in the Senate aren’t doing anything at all different or worse than what the Dems have done.
Floating Sandoval’s name yesterday was a cute trick by the Obama Administration, but a pro-choice Republican isn’t going to be confirmed by this Senate in an election year, even if he was confirmed unanimously a decade ago to a district court seat.
This — like gun control — will be another major Dem talking and campaigning point only when the Dem candidates are speaking to already-friendly audiences. They’ll back off from this in any debates with Republicans, and if they argue it at all, they’ll touch it lightly and back off. The talking point can only fool the people who are absolutely desperate to be fooled.
Beldar (fa637a) — 2/25/2016 @ 8:37 amWhen have you known democrats not lying and republicans not caving?
Hopefully, this will be the first time republicans don’t cave. Who cares when democrats start telling the truth?
Jim (b1ce76) — 2/25/2016 @ 8:41 amNK – I’m a member of the NJ bar, and when the NJ bar mails me, *they* put Esq. after my name.
I find it an odd affectaiton, myself.
aphrael (e0cdc9) — 2/25/2016 @ 8:44 amIt’s ok, although a little quaint, to address an attorney that way. But the attorney should not call himself that.
nk (dbc370) — 2/25/2016 @ 8:56 amI vote for “lying” about the constitution, not “ignorant.”
It’s the voters whom they (Senator Dick Durbin and the Democratic leadership) hope are ignorant
Theer are some mandatory clauses in the constitution, like counting the Electoral votes (lthough nowadays some legislation – appropriating money for people to work for the president-elect on a a presidential transition) anticipates it.
Sammy Finkelman (7c7fb2) — 2/25/2016 @ 9:06 amI especially enjoyed the rejoinder that by not allowing Americans to impeach Senators (i.e., it’s not in the Constitution) that their fundamental right to impeachment (wherever that is) is a violation of the substantive due process rights they have (due process rights?).
Yes, Americans have a substantive due process right to impeach public officials.
That is, er, to use a phrase, original.
SteveMG (96383c) — 2/25/2016 @ 9:17 amSilly you. It’s a LIVING Constitution! Living, as in changes-to-say-whatever-I-want-it-to-say-at-the-moment living.
I mean look at trees. Living things. In the winter, they have no leaves, in the summer, full of leaves.
Constitution is the same. When a Republican is in the White House and the Dems control the Senate, they don’t have to do anything. When it is the other way around, the Republicans have violated the Constitution if they don’t grant a hearing to every nominee. Summer leaves, winter bare.
Don’t you get it?
Bored Lawyer (998177) — 2/25/2016 @ 9:17 amDurbin and Schumer lie as easily as they breathe. Shamelessly.
JD (0fb5ae) — 2/25/2016 @ 9:29 amEither chamber can expel members but I’m sure it requires at least a majority. Esq is a Democrat.
nk (dbc370) — 2/25/2016 @ 9:46 amWhen Democrats aren’t hallucinating Constitutional requirements that homosexuals be allowed to hijack marriage, citizens must purchase a consumer product (health insurance) against their will, the right to bear arms does not exist, etc., they’re lecturing conservatives about how truth and facts are important to have.
CrustyB (69f730) — 2/25/2016 @ 10:04 amOf course, the Junior Senator to Durbin, the RINO Kirk, is one of the few squishes publicly calling for hearings. Illinois is a cesspool. Not a bad reflection of the body politic of the USA as a whole, unfortunately.
Ed from SFV (3400a5) — 2/25/2016 @ 11:05 am12.nk (dbc370) — 2/25/2016 @ 9:46 am
Either chamber can expel members but I’m sure it requires at least a majority.
Two thirds of all the members. (2/3) That would mean 67 Senators. And they don’t do it lightly, although the standards are lower than for impeaching a president. (Compare Packwood to Bll Clinton)
They don’t like to do that. If something like that is liable to happen, the member of Congress usually resigns under pressure.
Sammy Finkelman (7c7fb2) — 2/25/2016 @ 11:14 amEd from SFV,
Do you think Ted Cruz or Mike Lee could get elected US Senator in Illinois?
Cruz Supporter (102c9a) — 2/25/2016 @ 11:15 amEd from SFV: Kirk, along with a few other Republican Senators from Blue or Purple states, are in a terrible bind right now. Support having hearings and conservatives stay home and don’t vote for you. Oppose having hearings and you risk alienating the center (in those states) and losing the election.
I’m not a Republican or a Conservative, so I don’t really get a vote here. And I think you’d do well to cut Republican Senators in blue-and-purple states slack on this issue.
aphrael (e0cdc9) — 2/25/2016 @ 12:09 pmI think both sides of the argument are saying stupid things, to be honest.
On the one hand: there simply *is* no tradition of not holding votes for vacancies which arise in election years. They voted on Fortas. They voted on Murphy. They voted on Brandeis. They voted on Clarke. The Senate voted to confirm the replacement of a Justice who resigned *to become the opposition party’s candidate for President*. The claim that there’s some longstanding tradition of not voting to confirm under these circumstances is a flat-out lie.
On the other hand: the Senate has an absolute right to refuse to consider a nomination, for any reason it chooses to do so. It may be bad politics to do so. It may be bad policy to do so. But it’s *not* in any way a Constitutional violation – and it’s not an abrogation of the Senate’s duty for it to say, hey, we’ve decided that *any* nominee from this President is unacceptable, so we’re not going to consider them. And so the claim that the Senate is behaving unconstitutionally is *also* a flat-out lie.
[I do think it’s a bad policy decision; it would be far better to have the vote and then vote the nominee down – because I think that the precedent established here will inevitably lead to a situation where no nominee, by any President, can get confirmed by a Senate controlled by an opposing party … and I think the Republic is weaker for it.]
aphrael (e0cdc9) — 2/25/2016 @ 12:22 pmIgnorant or lying?
That’s at least an “and/or,” isn’t it? Probably just “and.”
Beldar (fa637a) — 2/25/2016 @ 1:19 pm@ aphrael (#16): There no precedent being “set” here.
Both parties accuse the other’s politicians of, at bottom, being politicians. There’s hypocrisy and grandstanding on both sides, but if you’re going to ask which side’s hypocrisy and grandstanding are more obvious and less defensible, it’s the Dems.
Yes, there’s a possibility of gridlock if each branch of government presses its own constitutional checks on the other branches to their maximum imaginable extent. But that’s been true since the Constitution was ratified.
Robert Bork. Miguel Estrada. I’ve no patience with or interest in the Dems’ sanctimony, and little patience with anyone else who fails to recognize that the Dems don’t believe any of what they’re now preaching.
Beldar (fa637a) — 2/25/2016 @ 1:26 pm(I’m not including you, btw, in that “little patience,” as you clearly recognize that both sides are saying “stupid things.”)
Beldar (fa637a) — 2/25/2016 @ 1:27 pmBeldar – my observation would be that over the last decade and a half, each side has reacted to the other side’s behavior by doing *worse* in retaliation. This particular retaliation is clearly more severe than the acts it is in retaliation for; those acts were clearly more severe than the acts they were in retaliation for; etc.
The endgame of that line of continued escalation is disaster.
The trouble is I’m not seeing either side being willing to apply breaks to the escalation, and I’m not seeing any workable institutional breaks, either.
My operative expectation is that if the Democrats retake the Senate, they retaliate for this by abolishing the filibuster for judicial nominees; and my operative expectation is that if the Republicans keep the Senate but Sen. Clinton wins, the Republicans do not entertain any nominee she puts forward.
And I don’t see how to prevent *either* outcome; they’re both logical extensions of the current pattern of escalation.
So how do we get back to a working system again?
aphrael (e0cdc9) — 2/25/2016 @ 1:32 pm(as a total offtopic aside, I cannot help but read your name as a reference to David Eddings. amusingly, many people have that reaction to *my* name … even though my name isn’t actually related to the character in his books).
aphrael (e0cdc9) — 2/25/2016 @ 1:35 pmFor those who don’t speak “Twitter” — and I don’t trust my own fluency! — it appears from me that “@MikeSacksEsq” was merely republishing a suggestion first made by Sen. Mazie Hirono (D-HI). Our host may have assumed this was obvious, since he seems to be fluent in Tweet himself.
It’s distressing, but not a bit surprising, that a lawyer (Republican or Democrat) would think the constitutional impeachment power is how senators could be removed from office. It’s almost predictable that such would come from a lawyer who puts “Esq” after his own name or social media handle. (I’ve written about this before.)
It is surprising to me, though, that sitting Sen. Hirono is that poorly informed about her own job, though, and per Wikipedia, she’s apparently a lawyer too:
Georgetown University Law Center is a good school; it should be ashamed, if it’s capable of such and if Sacks-Esq.’s attribution of this threat/idea to Sen. Hirono is correct.
Beldar (fa637a) — 2/25/2016 @ 1:37 pmTell me the travesty committed by the Republicans that’s comparable to, much less worse than, the travesty of what the Dems did to Bork. If your premise is right — that both sides keep escalating — neither Justice Sotomayor nor Justice Kagan would be on the Court now.
This is a false equivalency. There’s no point talking about how to “fix” things — which would require a change in the Constitution — if we’re starting from the premise that both sides are equally at fault.
The political reality is that the Dems have already abolished the filibuster for judicial nominees, and indeed, for anything else they really really want when they’re back in power. They engaged in the fiction that they’d only nuked the filibuster for lower court nominations, which is a clever and absolutely unprincipled distinction with neither constitutional nor policy underpinnings. But if they’re going to insist on sticking to that lie, now, on the brink of an election, is not the time for the Republicans to pierce it.
If you want to fix the system, then elect Democrats who’re genuinely committed to restoring the comity they destroyed. I doubt it could be done, but short of a constitutional amendment that’s the only place it could start.
I’m not holding my breath for Harry Reid to stand up and say, “You know, I was wrong, and I’ve been lying, and I’ve seen the light and now I’m ready to stop playing raw partisan politics with judicial nominations.” I’m certainly not holding my breath for Harry Reid to act in accordance with that.
Beldar (fa637a) — 2/25/2016 @ 1:52 pmAphrael,
I am unaware of any reciprocity by the Repubs for the treatment of Bork, Estrada, and Pickering in my limited knowledge of the subject, can you name some equivalents?
As far as papers to get permission to work, I sure have had to prove I was a US citizen for my employment, I sort of thought it was the norm.
MD not exactly in Philly (deca84) — 2/25/2016 @ 1:54 pmMaybe people were trying to discriminate against me.
And fwiw, if a Republican behaved as badly as Obama, we would have been against his/her reelection, even if the lawlessness “furthered our agenda”.
MD not exactly in Philly (deca84) — 2/25/2016 @ 1:57 pmBeldar beat me to my point by a few minutes.
I was not paying that much attention to politics at the time, so I might be wrong, but I don’t recall the Repubs as a whole going full scale against Clinton during Bosnia,
MD not exactly in Philly (deca84) — 2/25/2016 @ 2:04 pmAfaic, the behavior of the dems after the initial support of the Iraq invasion was traitorous, and never to be forgotten.
Neither to be forgotten was the duplicitous nature of the Clinton’s support of DOMA or of Obama’s position on SSM.
Campaign and lobby for positions you want all that you want,
But we are tired of people lying.
The system will only be “fixed” under the same conditions it has always worked, when there is an adequate depth and breadth of personal virtue of those inhabiting the system.
MD not exactly in Philly (deca84) — 2/25/2016 @ 2:08 pmOtherwise it falls to the most effective tyrant.
Here’s a Brookings Institution report from last summer:
> http://www.brookings.edu/blogs/fixgov/posts/2015/08/18-obama-federal-judges-confirmation-wheeler
Key quote: “Opposite party senators did the same thing during the Clinton and Bush administrations, but not to the same extent.”
See also this report by the Alliance for Justice:
> http://www.afj.org/blog/afj-year-in-review-2015-was-a-terrible-horrible-very-bad-year-for-judicial-confirmations
“Only 11 judges were confirmed, the fewest in a single year since 1960. Only one court of appeals judge was confirmed, the worst since none were confirmed in 1953.”
http://judicialnominations.org/judicial-vacancies has a list of open vacancies, including one nomination which has been pending since 8/18/2014.
Also, the refusal to consider any nomination NOW, is clearly an escalation and a retaliation.
aphrael (e0cdc9) — 2/25/2016 @ 2:16 pmQuestion–choose one answer: Are Harry Reid, Dick Durbin, Senator Warren and Chuck Schumer either (A) liars or (B) ignoramuses where the Constitution is concerned?
There is no correct choice in the answers above–since the true statement is that they are both liars and ignorant of the Constitution.
Comanche Voter (1d5c8b) — 2/25/2016 @ 2:23 pmaphrael – We won’t lose the majority when Kirk loses his seat in November. This is not the first time he went all wobbly. He is giving aid and comfort to the enemy – Obama and the Dhimmicrats on this issue of singular importance. Politically, the party loses if we get to a point of arguing the merits of a given individual. It drastically increases the chance that other RINO fool Senators will cave. and then? Goodbye what is left of the Constitution, and of the USA.
We are heading into a time where we’ll need a united majority in Congress. At a minimum, we can’t have internal fights over the drastic alterations in course which are necessary. We simply must know who our allies are, and who our enemies are in the coming hoped-for conflicts.
Ed from SFV (3400a5) — 2/25/2016 @ 2:24 pmThe only law elected democrat lawyers are current with are how to hide the graft.
gbear (fad6d1) — 2/25/2016 @ 2:31 pmAh, yes – Dickie Durbin, the other useless Senator from the Outfit.
mojo (a3d457) — 2/25/2016 @ 2:32 pmNo, what is “true” depends on what is claimed, according to my understanding.
The fine point is that no justice has been nominated and voted on in the last calendar year for 100 years, other than Fortas, I guess.
This is what is being called the “Biden Rule”, as he voiced it as a senator some time ago.
I’m afraid quoting claims from sources without raw data in context means nothing to me, I give it no credibility, not much better than saying “x” political science prof from Harvard says “y”.
My relatively unaware self can name 3 specific instances at the level of Supreme or District.
MD not exactly in Philly (deca84) — 2/25/2016 @ 2:35 pmI want names of Borked Dem nominations.
That is calendar year of the last year of a presidency.
MD not exactly in Philly (deca84) — 2/25/2016 @ 2:38 pmI could be wrong, but I do believe that is the detail quibbled over.
> The fine point is that no justice has been nominated and voted on in the last calendar year for 100 years, other than Fortas, I guess.
Which is untrue. All four of the people I listed were nominated and voted on in the last calendar year of a Presidential term, within the last 100 years. Including, as I said, the replacement for a Justice who resigned to run as the opposing party’s candidate.
Imagine, if you will, that Justice Thomas resigned and ran for President as the Republican nominee. That’s what Charles Evans Hughes did in 1916 – and President Wilson nominated, and the Senate confirmed, his successor.
aphrael (e0cdc9) — 2/25/2016 @ 2:41 pmAlliance for justice was one of those outfits that went all out against thomas, the fact the new majority confirmed wilhemina wright, escobedo, sic is more indicative.
narciso (ea0f8c) — 2/25/2016 @ 2:42 pmWell, I stand corrected, maybe the fine point was that the seat had not been vacated and then a nomination and confirmation in the same calendar year…
I do think calling it the Biden rule still applies,
Could be wrong on that too.
Hey, they can say go ahead and nominate and we’ll approve if the person is a good replacement for Scalia.
I’ve said too much,
MD not exactly in Philly (deca84) — 2/25/2016 @ 2:56 pm#27 was my most important point
Everything else is arranging deck chairs.
The claim I’ve heard is that no nominee has been confirmed for a vacancy which arose in a presidential election year in the last 80 years. This is technically true – there have only been two vacancies which have arisen during a presidential election year. One of them was Fortas, who was defeated, and one of them was Brennan, who was a recess appointment that was then confirmed the following year.
The thing is, though, while it’s technically true, it’s *misleading*. There have been no such confirmations NOT because of a policy against them, but because of a lack of opportunity. The record clearly shows that when such vacancies *were* occurring, they were being filled.
Of course, times have changed. And, like I said above, the Senate has *every right* to refuse to confirm a nominee *for any reason it chooses*. I just resent the lie and wish they’d be more straightforward: they’re refusing to approve any nominee Obama puts forward because they don’t want the court to become more liberal, and because they’re bitter and resentful over Bork and want payback.
aphrael (e0cdc9) — 2/25/2016 @ 3:08 pmAphrael
Beldar
Yannow, it’s nice to watch two lawyers who actually know the law on opposite sides of the aisle civilly hash out a question. Makes for a very informative read.
Bill H (dcdd7b) — 2/25/2016 @ 4:18 pmhttps://www.washingtonpost.com/opinions/how-biden-killed-john-robertss-nomination-in-92/2016/02/25/c17841be-dbdf-11e5-81ae-7491b9b9e7df_story.html?postshare=3631456434039221&tid=ss_fb
“The Biden Senate Rules”
MD not exactly in Philly (deca84) — 2/25/2016 @ 4:22 pmaphrael, we were having a pretty good conversation until you started relying on the Brookings Institution.
Beldar (fa637a) — 2/25/2016 @ 4:27 pmNaw, I think that’s the gist of it. There’s absolutely nothing stopping Preezy 404 from nominating. He can nominate as many as he likes. There’s also nothing stopping the Senate from waving a middle finger at him. I get that the Senate, in their role as advisors to the President can tell him “no”. But leaving the nomination to the next President is risky. None of us know how the election will break, and none of us know just how that nomination will go. All we can do is speculate, and hope this is the correct path. A nomination followed by a no vote would be the safest path. If only our Senators had stones enough to do that……
Bill H (dcdd7b) — 2/25/2016 @ 4:36 pmHe can nominate, though I haven’t noticed him asking for the Senate’s advice. But whoever he nominates needs vetting. Very popular in Dem circles, I understand.
Yes sir, lots and LOTS of vetting. Bork-level vetting.
mojo (a3d457) — 2/25/2016 @ 6:57 pmBeldar – I just did a google search for data!
I’m curious, though; I consider the Brookings at least a facially reputable organization. What’s your beef with them?
aphrael (3f0569) — 2/25/2016 @ 9:43 pmwhen all the stalwarts in the democratic party, biden, hillary, obama, and the new york times, hold positions antithetical to proper vetting, back to 1986, in the Times case,
narciso (732bc0) — 2/25/2016 @ 9:49 pmi’m not cynical…
i’m experienced. 😎
redc1c4 (29249f) — 2/26/2016 @ 12:46 am