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White House narrows search to three for Supreme Court

 

The White House has narrowed its search for a U.S. Supreme Court nominee to three federal appeals court judges, Sri Srinivasan, Merrick Garland and Paul Watford, a source familiar with the selection process said on Friday.

 

Srinivasan, an Indian-American who served under presidents of both parties before President Barack Obama named him as an appellate judge, and Garland, considered but passed over for the Supreme Court twice before by Obama, are considered the leading contenders, according to the source and two other sources close to the process.

 

Obama is searching for a replacement for long-serving conservative Justice Antonin Scalia, who died on Feb. 13. Senate Republicans have vowed not to hold confirmation hearings or an up-or-down vote on any nominee picked by the Democratic president for the lifetime position on the court.

 

It looks like Garland is the nominee. Though he's fairly moderate, I expect his stance on the Second Amendment is what will be called into question by Republicans. He infamously ruled in favor the now unconstitutional DC gun ban (DC vs. Heller). If the Republicans do approve him, expect gun sales to spike!

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White House narrows search to three for Supreme Court

 

The White House has narrowed its search for a U.S. Supreme Court nominee to three federal appeals court judges, Sri Srinivasan, Merrick Garland and Paul Watford, a source familiar with the selection process said on Friday.

 

Srinivasan, an Indian-American who served under presidents of both parties before President Barack Obama named him as an appellate judge, and Garland, considered but passed over for the Supreme Court twice before by Obama, are considered the leading contenders, according to the source and two other sources close to the process.

 

Obama is searching for a replacement for long-serving conservative Justice Antonin Scalia, who died on Feb. 13. Senate Republicans have vowed not to hold confirmation hearings or an up-or-down vote on any nominee picked by the Democratic president for the lifetime position on the court.

 

It looks like Garland is the nominee. Though he's fairly moderate, I expect his stance on the Second Amendment is what will be called into question by Republicans. He infamously ruled in favor the now unconstitutional DC gun ban (DC vs. Heller). If the Republicans do approve him, expect gun sales to spike!

 

He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

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He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

 

:roll:

 

Any justice that has served as long as Garland is going to have written some opinions that Republicans disagree with.  But he has a solid reputation as a centrist and would make a great Supreme Court Justice.  Who would you have been satisfied with, E Rocc?

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He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

 

:roll:

 

Any justice that has served as long as Garland is going to have written some opinions that Republicans disagree with.  But he has a solid reputation as a centrist and would make a great Supreme Court Justice.  Who would you have been satisfied with, E Rocc?

 

He might be okay to replace Ginsberg or Breyer, but I am not fine with a consistent nonbeliever in the right to keep and bear arms as a replacement for Scalia.

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Where is it written that the Supreme Court must maintain a balance of x conservatives and y liberals? Or that conservatives must only be replaced with conservatives, or liberals only replaced with liberals?

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Nowhere.  So what?

 

It also isn't written anywhere that the Supreme Court must have exactly 9 justices.

 

It also isn't written anywhere that the Senate must follow any particular process in response to a presidential nomination to any judicial post.  In fact, the Supreme Court is in this respect legally no different than any circuit court of appeals, where vacancies sometimes go unfilled for years due to political gridlock and bargaining.

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He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

 

:roll:

 

Any justice that has served as long as Garland is going to have written some opinions that Republicans disagree with.  But he has a solid reputation as a centrist and would make a great Supreme Court Justice.  Who would you have been satisfied with, E Rocc?

 

He might be okay to replace Ginsberg or Breyer, but I am not fine with a consistent nonbeliever in the right to keep and bear arms as a replacement for Scalia.

 

Where do you get the idea that he is a "consistent nonbeliever in the right to keep and bear arms"?  Just because one believes, as Scalia himself did and any rational thinker does, that the rights under the Second Amendment are not unlimited, does not make that person a nonbeliever in the righto keep and bear arms. 

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He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

 

Is not disingenuous to nominate a highly qualified relative moderate with past Republican support, just because of an anticipated Republican reaction. That's not what disingenuous means. The President is not obligated to accommodate his opponents' reactions.

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He is probably not going to get confirmed, largely for that reason.  Obama was disingenuous to nominate  him.

 

Is not disingenuous to nominate a highly qualified relative moderate with past Republican support, just because of an anticipated Republican reaction. That's not what disingenuous means. The President is not obligated to accommodate his opponents' reactions.

 

I don't think anyone is suggesting that he is.  But the Senate is likewise not obligated to accommodate the president's nomination, including with hearings or votes.  Many judicial nominations never get votes.

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I still don't understand how the senate's "advice and consent" role can be read to include neither. 

 

The constitution grants that power only to the full senate, including members not represented by the majority leader.  It does not grant any power to any committee or any individual senate member.  It is not possible for Mitch McConnell or Joe Biden or anyone else to speak for the full senate.  McConnell is actually withholding power from his own branch, with no constitutional basis for doing so.

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^Now you are going to get Gramarye started on parliamentary process and the Senate's discretion in that regard.  Of course you can never force the Senate to do anything.  No president or court of law can order the Senate to take a vote or any other legislative action.  Best they can do is invalidate actions taken.  But it would be interesting to see what happens if one makes the argument that the Senate's silence can be implied as consent.  There could be some truth to that.  That's basically the rationale for a recess appointment.

 

As for the "appoint" / "nominate" issue, we might be splitting hair here, but it is indeed the President who appoints federal judges.  The Senate must approve the appointment.

 

Would you say that a President does not appoint his/her cabinet members?

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I still don't understand how the senate's "advice and consent" role can be read to include neither. 

 

The constitution grants that power only to the full senate, including members not represented by the majority leader.  It does not grant any power to any committee or any individual senate member.  It is not possible for Mitch McConnell or Joe Biden or anyone else to speak for the full senate.  McConnell is actually withholding power from his own branch, with no constitutional basis for doing so.

 

Incorrect on all counts.  The Senate has full control over its own processes.  The president can no more compel the Senate to hold hearings on nominations than on any other topic.  The Senate's "advice" is to wait until after the next election, and its "consent" will clearly not be forthcoming.  No formal vote is needed to signal a lack of consent.  And there is more than sufficient precedent for nominees to be denied up or down votes, so it's disingenuous (in the correct usage of that term) to suggest that refusing to do so somehow shatters precedent.

 

But it would be interesting to see what happens if one makes the argument that the Senate's silence can be implied as consent.  There could be some truth to that.  That's basically the rationale for a recess appointment.

 

It would not be "interesting."  It would be terrifying.  That actually would be unprecedented, and an even more dramatic act of arrogation of power to the executive than Obama has already done.  I don't think even Obama will go that far, though the fact that he might try is precisely the reason why no one he nominates deserves any further consideration for a post that will be the highest authority on constitutional law in the land.

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Oh, he surely would not go that far.  Not even Bush or Reagan would've went THAT far.  Still an interesting question.

 

FWIW, "the Senate" has not advised anything.  "The Senate" is more than just McConnell and his cronies.  McConnell & Co. can abuse their own process and prevent a vote.  By doing so, they would arguably commit nonfeasance or possibly even misfeasance..... not that there would be any recourse.

 

You can hold whatever opinion you want, and obviously what ever opinion you hold is vastly tainted by your own desired outcome.  But let's not act like this is an issue which has any simple and easy answer.

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Except it is an issue with a simple answer, legally.  It's a very complicated answer politically, of course.  But the legal answer really is simple.  There is absolutely nothing Obama can do to force the Senate to hold hearings or take votes on any issue.  Period.  The consequences of that will be judged by the voters in November.

 

Also, don't pretend that I'm the only one with a "desired outcome" here.

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I still don't understand how the senate's "advice and consent" role can be read to include neither. 

 

The constitution grants that power only to the full senate, including members not represented by the majority leader.  It does not grant any power to any committee or any individual senate member.  It is not possible for Mitch McConnell or Joe Biden or anyone else to speak for the full senate.  McConnell is actually withholding power from his own branch, with no constitutional basis for doing so.

 

Incorrect on all counts.  The Senate has full control over its own processes.  The president can no more compel the Senate to hold hearings on nominations than on any other topic.  The Senate's "advice" is to wait until after the next election, and its "consent" will clearly not be forthcoming.  No formal vote is needed to signal a lack of consent.  And there is more than sufficient precedent for nominees to be denied up or down votes, so it's disingenuous (in the correct usage of that term) to suggest that refusing to do so somehow shatters precedent.

 

Yes the senate controls its own internal processes, but not to an extent that overrides express constitutional provisions.  The president has full discretion over his own agenda, but "take away the senate's express power by simply ignoring it" cannot be part of that agenda.  If the president receives a bill from congress and ignores it, what happens to that bill?  It becomes law.  He had the power to veto it, but he chose nonfeasance instead, so life goes on without him.  He does not get to take away the senate's lawmaking power by pretending there aren't any bills on his desk.

 

Again, the "advice" you're describing is not the senate's, it is Mitch McConnell's.  He speaks only for the senate's majority party and not necessarily all of it.  He cannot unilaterally decide what the senate's advice or consent might be.  There is no way to ascertain the full senate's position without any kind of vote.  A committee hearing allows the minority party to weigh in, and more significantly, it allows dissenters within the majority party to weigh in too, and even perhaps side with the opposition party.  Anything short of that is the majority leader usurping an express constitutional power held by every senator that isn't him. 

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I still don't understand how the senate's "advice and consent" role can be read to include neither. 

 

The constitution grants that power only to the full senate, including members not represented by the majority leader.  It does not grant any power to any committee or any individual senate member.  It is not possible for Mitch McConnell or Joe Biden or anyone else to speak for the full senate.  McConnell is actually withholding power from his own branch, with no constitutional basis for doing so.

 

Incorrect on all counts.  The Senate has full control over its own processes.  The president can no more compel the Senate to hold hearings on nominations than on any other topic.  The Senate's "advice" is to wait until after the next election, and its "consent" will clearly not be forthcoming.  No formal vote is needed to signal a lack of consent.  And there is more than sufficient precedent for nominees to be denied up or down votes, so it's disingenuous (in the correct usage of that term) to suggest that refusing to do so somehow shatters precedent.

 

Yes the senate controls its own internal processes, but not to an extent that overrides express constitutional provisions.  The president has full discretion over his own agenda, but "take away the senate's express power by simply ignoring it" cannot be part of that agenda.  If the president receives a bill from congress and ignores it, what happens to that bill?  It becomes law.  He had the power to veto it, but he chose nonfeasance instead, so life goes on without him.  He does not get to take away the senate's lawmaking power by pretending there aren't any bills on his desk.

 

That's because there is an express constitutional provision that says it becomes law.  There is no corollary here.

 

Again, the "advice" you're describing is not the senate's, it is Mitch McConnell's.  He speaks only for the senate's majority party and not necessarily all of it.  He cannot unilaterally decide what the senate's advice or consent might be.  There is no way to ascertain the full senate's position without any kind of vote.  A committee hearing allows the minority party to weigh in, and more significantly, it allows dissenters within the majority party to weigh in too, and even perhaps side with the opposition party.  Anything short of that is the majority leader usurping an express constitutional power held by every senator that isn't him.

 

It is not just Mitch McConnell's, it is the Senate's, by virtue of the Senate's own established rules.  And I dislike many parts of those rules (you can find some of my seething about the filibuster if you go back far enough on these boards, I'm sure), but they are the rules that the Senate set for itself, and the Constitution allows it.  If the Senate wanted to weaken the power of the majority leader, I'd be all for it, actually, but they have not done so.  The rules of the chamber have been changed many times--committees and committee chairs have gotten stronger and weaker at various points over the years, ditto party leadership teams (majority/minority leader, whip, etc.).  All of it has been constitutional and the president cannot declare it unconstitutional now just based on the fact that he doesn't like it.  He can declare the fact that he doesn't like it and has done so.  So can "dissenters within the majority," in your words.  (You act like they're silenced, when in fact every media outlet in Washington, right and left, would be all over any Republican Senator breaking ranks on this issue.)

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So... you're saying the non-McConnell senators' advice and consent powers only exist outside the actual senate?  I don't see how discussions with the media have anything to do with anything.  Media discussion certainly isn't the extent of any given senator's authority on this matter.  You seem to suggest it's the extent of all 99 non-McConnell senators' power combined. 

 

The full senate's advice and consent power cannot be taken away through via internal rulemaking.  The senate speaks only through voting, not through Mitch McConnell or any other individual.  if he tries to take away the senate's voice, the president doesn't need to call it unconstitutional, because the constitution already did.  Ours is a government of laws, not of men. 

 

McConnell is claiming to have more unilateral power than the president, to the extent that his decision on nominations is 100% effectual while the president's is 100% worthless.  If McConnell truly has the senate's backing on this matter, then why not let the senate vote?  Same result with no constitutional problem.

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Orrin Hatch is a real piece of work. After wholeheartedly supporting Garland 20 years ago, he now refuses to give him a fair vote and even claims that by making a nomination, Obama is politicizing the court. His alternative suggestion, to let the American people in an election decide 8 months from now, actually does more so to politicize the court than anything Obama has done. These are the old fools that are dictating the future of progress in this country. Wonderful!

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Except it is an issue with a simple answer, legally.  It's a very complicated answer politically, of course.  But the legal answer really is simple.  There is absolutely nothing Obama can do to force the Senate to hold hearings or take votes on any issue.  Period.

 

Did I somehow give you the impression that I disagree with that?  Seems to pretty closely parrot what I said. But just because there is no legal mechanism to force a vote does not mean the Senate 'leadership' is not preventing the Senate from performing its duty.  What that duty is under such circumstances is something which might not be justiciable, but certainly can be a subject of public debate. We are under no duty to wait for November to raise our grievances with this abuse of our political process.

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"The boss rolls up in a new Lamborghini and tells his staff 'The greatest part about America is that hard work breeds wealth. So if you work hard and dedicate yourself tirelessly to the task at hand, I can get another new Lamborghini next year.'” -- Overheard in a Cleveland bar.

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