The Real Charge of the Roberts Supreme Court

[JSRG]

The phrasing is that the President appoints justices with the advice and consent of the Senate.

Right. It's saying that he can't appoint a justice without the advice and consent of the Senate. It's a restriction on his power, not a requirement of the Senate.

The Senate doesn't have to consent to any nominee, but the Senate majority leader is not the Senate, nor is the Judicial Committee. By preventing the Senate from providing or withholding its consent, McConnell acted unconstitutionally.

No, he did not. As noted, the Constitution does not require the Senate to give advise and consent--if that was our read, then it would mean it has to consent to everything, which makes no sense.

Since it is not a requirement that the Senate gives advise and consent on anything, there is therefore nothing unconstitutional about preventing them from doing so. It should also be noted, of course, that if the Senate wanted so much to advise and consent, they could have done so--McConnell is just one person. But enough were in agreement with him that they chose to take no action.

I should note, incidentally, that despite the constant claims by some that his actions were "unprecedented", this was not the first time the Senate simply chose not to act on a nominee at all--that's been done various times. Heck, it's not even the first time the Senate simply chose not to act on a Supreme Court justice, as seen when the Democrat-controlled Senate simply ignored the attempts by President Millard Fillmore (a Whig) to fill a Supreme Court justice seat. He nominated Edward Bradford and the Senate took no action, nor did they for another attempt with William Micou. Then Franklin Pierce (Democrat) won and they confirmed his choice instead. Obviously this was a good while ago, but it still happened.

 

[Pommer]

…

 

[RocksInMyHead]

Right. It's saying that he can't appoint a justice without the advice and consent of the Senate. It's a restriction on his power, not a requirement of the Senate.

If it's not a requirement of the Senate, then we could conceivably live in a world where there is no Supreme Court, should the Senate so choose. In fact, several Republicans essentially proposed that during the Garland confirmation fight. There were some senators who were saying that the Senate should not consider any nominees to replace Scalia should Clinton win the 2016 election.

No, he did not. As noted, the Constitution does not require the Senate to give advise and consent--if that was our read, then it would mean it has to consent to everything, which makes no sense.

Yes, that would make no sense, which is why that's a really dumb way of interpreting it. The Senate advises and can give or withhold its consent via a vote. If a vote is not held, the Senate is not performing its duty.

Since it is not a requirement that the Senate gives advise and consent on anything, there is therefore nothing unconstitutional about preventing them from doing so.

Aside from the fact that it could be used to eliminate the Supreme Court.

It should also be noted, of course, that if the Senate wanted so much to advise and consent, they could have done so--McConnell is just one person. But enough were in agreement with him that they chose to take no action.

No, they could not - not without changing the rules of the Senate. The Majority Leader is the one who brings matters to the Senate for a vote. If Mitch McConnell did not want something voted on, it would not get voted on. Furthermore, he never even received consideration from the Judiciary Committee, which is currently a requirement for judicial nominees.

I should note, incidentally, that despite the constant claims by some that his actions were "unprecedented", this was not the first time the Senate simply chose not to act on a nominee at all--that's been done various times. Heck, it's not even the first time the Senate simply chose not to act on a Supreme Court justice, as seen when the Democrat-controlled Senate simply ignored the attempts by President Millard Fillmore (a Whig) to fill a Supreme Court justice seat. He nominated Edward Bradford and the Senate took no action, nor did they for another attempt with William Micou. Then Franklin Pierce (Democrat) won and they confirmed his choice instead. Obviously this was a good while ago, but it still happened.

Not having been alive at the time, I can't really comment on the circumstances, but I'd say that this was likely unconstitutional as well.

 

[SimplyMe]

People to sue? What people? Please cite the law.
Don't like the states policy? Don't live there.

"But in order to evade federal court review, which the law’s drafters explicitly acknowledged was the goal, they authorized its enforcement exclusively by private citizens who would bring civil lawsuits against anyone who performs, aids or abets an abortion after six weeks of pregnancy." LINK

 

[JSRG]

If it's not a requirement of the Senate, then we could conceivably live in a world where there is no Supreme Court, should the Senate so choose. In fact, several Republicans essentially proposed that during the Garland confirmation fight. There were some senators who were saying that the Senate should not consider any nominees to replace Scalia should Clinton win the 2016 election.

The Senate could, if it chooses, refuse to confirm a single justice to the Supreme Court perpetually and essentially abrogate the court over a period of several decades. It's allowed. Might be a bad idea, but it's allowed.

Additionally, your argument here--that it's unconstitutional to not hold a vote because it would mean we might not have a Supreme Court--has the problem that the Senate could hold votes, shoot them all down... and have the same result! So it doesn't make sense to say "not holding votes is unconstitutional because it could lead to this, so they have to do hold votes" if you can get the same result even if they hold votes!

Yes, that would make no sense, which is why that's a really dumb way of interpreting it. The Senate advises and can give or withhold its consent via a vote. If a vote is not held, the Senate is not performing its duty.

One could say it's not doing a civil duty or a moral duty, but it isn't its constitutional duty to hold a vote.

No, they could not - not without changing the rules of the Senate. The Majority Leader is the one who brings matters to the Senate for a vote. If Mitch McConnell did not want something voted on, it would not get voted on. Furthermore, he never even received consideration from the Judiciary Committee, which is currently a requirement for judicial nominees.

I know the Majority Leader has that power. However, that power (as far as I understand) is conferred by the Senate. Is there anything preventing the Senate from changing said power?

Not having been alive at the time, I can't really comment on the circumstances, but I'd say that this was likely unconstitutional as well.

Then it's been unconstitutional any of the other nominees that never got anything acted on in the more than a century subsequent. Just because it typically doesn't happen to Supreme Court nominees (perhaps because there's so few of them) doesn't mean other nominees don't get hit with it, but it's never publicized nearly as much because they're not as high-profile of appointments.

 

[RocksInMyHead]

The Senate could, if it chooses, refuse to confirm a single justice to the Supreme Court perpetually and essentially abrogate the court over a period of several decades. It's allowed. Might be a bad idea, but it's allowed.

Then it's been unconstitutional any of the other nominees that never got anything acted on in the more than a century subsequent. Just because it typically doesn't happen to Supreme Court nominees (perhaps because there's so few of them) doesn't mean other nominees don't get hit with it, but it's never publicized nearly as much because they're not as high-profile of appointments.

No. Re-read Article III of the Constitution - specifically the first sentence:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Congress has control over the existence of lower courts, but the Supreme Court is established by the Constitution. Congress cannot simply unmake it.

Additionally, your argument here--that it's unconstitutional to not hold a vote because it would mean we might not have a Supreme Court--has the problem that the Senate could hold votes, shoot them all down... and have the same result! So it doesn't make sense to say "not holding votes is unconstitutional because it could lead to this, so they have to do hold votes" if you can get the same result even if they hold votes!

That could happen, but it at least forces the senators to record a vote. That's useful for accountability purposes. Otherwise, they can just say that they would have voted whichever way they think is most politically advantageous.

It's similar to how I'm in favor of bringing back the talking filibuster. If you're going to filibuster, then filibuster. You'd better be out on the floor all day reading the dictionary, or the telephone book, or speaking out against the bill that you're filibustering. The fact that you have to waste people's time means that you're less likely to filibuster just for the sake of it. It's about accountability.

One could say it's not doing a civil duty or a moral duty, but it isn't its constitutional duty to hold a vote.

As stated earlier, the Supreme Court exists by constitutional mandate. It is therefore a constitutional duty to hold a vote.

I know the Majority Leader has that power. However, that power (as far as I understand) is conferred by the Senate. Is there anything preventing the Senate from changing said power?

Not really, aside from the Senate's general reluctance to change rules and the general party loyalty that Republicans tend to display. Also, in this case, it wouldn't have helped because the nomination was actually stalled in the Judiciary Committee - it never made it to McConnell's desk (though he said that he would sit on it if it did). There is no way they could muster the votes to take the power to review nominees from the Judiciary Committee.

 

[NxNW]

These people are ruining democracy. It was they whom took away the right of individuals to decide, the power of our vote, through the court (activist judges).

To decide what?

What is consitutional.

The Court decides what is Constitutional, not the people.

 

[Pommer]

The Court decides what is Constitutional, not the people.

The court decides, based on the Constitution, what is allowable as a law.
The Volstead Act [18th Amendment] banned the manufacture of ethanol for human consumption, no court could say that “this is unconstitutional” not even the Supreme Court, since the law was (a part of) the constitution.
The people decided that.
Then, as we know, 13 years later it was axed from the Constitution.

 

[rjs330]

When Gorsuch, Kavanaugh, and Barrett were appointed to the Supreme Court (two of the three due to pretty unethical McConnell maneuvers) many Americans cheered them on as their heroes, appointed to save the babies. But do you really think that that's why Republicans were so anxious to stack the Court?

For the real reason, read Robert Reich, and see the terrible price we will pay.


The beginning of the end of regulation - Robert Reich (substack.com)

Overturning Roe v. Wade was just a distraction for people of conscience who waited decades for that decision so that the Supreme Court could surreptitiously grab the reins and dismantle our democracy.

Lol, so giving abortion to the states where people can engage in the democratic/republic process of governing themselves is dismantling our republic?

 

[Pardon Maoi]

What was it called when the Supreme Court had a Democratic appointed majority? Did they "stack the court" too?

There hasn't been a majority Democrat appointed court since the 1960s, maybe even the 50s.
Johnson had two that replaced one JFK and one FDR so that didn't change the composition.
JFK, for that matter, only replaced one FDR and one Ike.
Carter didn't have any.
Clinton had two, both of which have retired/died
Obama had two and Biden has had one.

So It's been over 60 years.

 

[Pardon Maoi]

Lol, so giving abortion to the states where people can engage in the democratic/republic process of governing themselves is dismantling our republic?

Because that's all they plan on doing, and throwing stare decisis out the window is great for the stability of the republic, right?

 

[Oompa Loompa]

There hasn't been a majority Democrat appointed court since the 1960s, maybe even the 50s.
Johnson had two that replaced one JFK and one FDR so that didn't change the composition.
JFK, for that matter, only replaced one FDR and one Ike.
Carter didn't have any.
Clinton had two, both of which have retired/died
Obama had two and Biden has had one.

So It's been at over 60 years.

So if the supreme court was already GOP selected majority, it appears that the issue isn't that the GOP "stacked the court" with Trump because it was already stacked. Rather, it issue is the the DNC failed to stack the court when they had the opportunity. Now they are sore about it.

 

[Pardon Maoi]

So if the supreme court was already GOP selected majority, it appears that the issue isn't that the GOP "stacked the court" with Trump because it was already stacked. Rather, it issue is the the DNC failed to stack the court when they had the opportunity. Now they are sore about it.

That's a valiant, but weird way to try and twist what I wrote with regard to the thread topic. So, more to the point, McConnell invents a "rule" that we CAN'T HAVE A SCOTUS JUSTICE HEARING when the election was NINE MONTHS AWAY in 2016, but then he suddenly decides we MUST HAVE A SCOTUS CONFIRMATION when the election was SIX WEEKS AWAY in 2020. If you can't see how that was an act of dishonesty at the very least, and a variation on packing the court, well....

 

[ralliann]

The Court decides what is Constitutional, not the people.

Yes. They apply the constitution. They do not make law. They decide the constitutionality or not in every case which comes before them. They don't make law for everyone in the United States. What the justices decided Abortion was not a right spoken of in the constitution. They did not take away the right to Abortion. They put the issue back into the hands of the people of this nation. Two ways this can be taken care of. Vote in pro abortion legislators in your state, or amend the constitution to include abortion. If amending the constution is not an option it is because in our democracy it is not acceptable by the majority. If it is acceptable by our democracy then it is a right of all people and the minority cannot take it away. These things should be the most fundamental concern for our freedom and democracy in this country.

 

[ralliann]

So if the supreme court was already GOP selected majority, it appears that the issue isn't that the GOP "stacked the court" with Trump because it was already stacked. Rather, it issue is the the DNC failed to stack the court when they had the opportunity. Now they are sore about it.

I agree. They want to rule over all of us by by passing our legislators we vote into office and rule through the supreme court. Basically the constitution says whatever they say it says. Dangerous stuff.

 

[rjs330]

Did they manipulate/change the rules to get those appointments?

Did the Republicans?

 

[rjs330]

Since supply side economics has been a disastrous failure for 40 years, decimating the middle class and exacerbating income inequality, Reich supports programs that build our economy.

It's hard to say that this was a bad thing since those in the middle class actually had upward growth rather than downward over the years. I certainly hope you aren't advocating for people to remain middle income rather than moving upward.

 

[rjs330]

"But in order to evade federal court review, which the law’s drafters explicitly acknowledged was the goal, they authorized its enforcement exclusively by private citizens who would bring civil lawsuits against anyone who performs, aids or abets an abortion after six weeks of pregnancy." LINK

All state law only applies to laws within it's state. That's why it perfectly legal according to STATE law to travel somewhere to get illegal drugs. My state cannot prosecute my friend for letting me use his car to obtain drugs in another state. They can't do a thing unless I actually have the drugs on me when I cross the state line with them.

 

[rjs330]

It's similar to how I'm in favor of bringing back the talking filibuster. If you're going to filibuster, then filibuster. You'd better be out on the floor all day reading the dictionary, or the telephone book, or speaking out against the bill that you're filibustering. The fact that you have to waste people's time means that you're less likely to filibuster just for the sake of it. It's about accountability.

I completely agree with this. The fillibuster was supposed to be that way. The congress changed it cause they didn't want to put in the effort. But I guess that their perogative.

 

[rjs330]

Because that's all they plan on doing, and throwing stare decisis out the window is great for the stability of the republic, right?

Are you not aware that stars decisis is tossed out the window frequently in the courts? Stare decisis is NOT law. As has been proven that previous decisions can be overturned if found to be unconstitutional.

Stare decisis can be used to guide decisions. It does not determine decisions.