Saturday, April 09, 2016

Obama To Force Merrick Garland On The SCOTUS By Executive Order?

by JASmius

Gregory L. Diskant seems to think so, and he claims, through an interpretation of Article II, Section 2 so tortured as to be against the Geneva Convention, that the Constitution says so:

The Constitution glories in its ambiguities....

No, Constitution-evisceraters like Gregory L. Diskant glory in the "ambiguities" they think allow them to completely negate the Founding Document's original intent.  And Greggy doesn't disappoint.

....and it is possible to read its language to deny the Senate the right to pocket veto the president’s nominations. [emphasis added]

Not if words have objective definitions, as opposed to people like you tearing out their fingernails with a rusty pair of pliers.

Start with the appointments clause of the Constitution. It provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States.” Note that the president has two powers: the power to “nominate” and the separate power to “appoint.” In between the nomination and the appointment, the president must seek the “Advice and Consent of the Senate.” What does that mean, and what happens when the Senate does nothing?....

Funny you should ask, Greg.  The president does not have "two powers"; it is one power that is both limited by the Senate's (which is to say the States' prior to Amendment XVII) and unfolds in several steps.  What the "appointments clause" says is that POTUS may make nominations to executive and judicial branch positions, but that's ALL he can do on his own authority; for them to become "appointments" - i.e actually be placed in those positions - the Senate must approve the nominations.  If the Senate does not do so, the "nominees" never become "appointments".  Period.

And Senate consent must be proactive, whereas Senate rejection can be active or passive, the latter off of which Greggy tries to work his unconstitutional angle:

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

A very....creative interpretation.  And this, of course, is why the Founders didn't give that power to the SCOTUS, but only the power to apply the law as written and originally intended.  In this case, that is manifestly NOT what Article II, Section 2 says, in addition to the fact that there is no constitutional requirement for the Senate to actively render its "advice and consent" within a set period of time, or at all.  If the majority party wishes to sit on the Garland nomination forever, that is their constitutional prerogative.  "Separation of powers" is a constitutional concept up on which Mr. Diskant may want to bone when he's got a spare afternoon.

Regardless, what Mitch McConnell and Charles Grassley have said and maintain is that the next president should nominate Antonin Scalia's replacement.  That's not a forfeiture of the Senate's advice & consent power - that would require proactive legislation, as when the Senate kicked that power away vis-a-vie Barack Obama's nuclear "deal" with Iran.  And given that Trumpmania has made it inevitable that that next POTUS will be Hillary Clinton, I really have no idea what Greggy's pants-wetting hurry is.  If he wants Justice Garland, he'll get him in just under a year.  Or someone even more to his liking.

One person to whose liking a Justice Garland would not be is - and this is as predictable as the sunrise - the "Wise Latina":

U.S. Supreme Court Justice Sonia Sotomayor said the nation's highest court needs more diversity of personal backgrounds and professional experience, speaking as a vacancy has refocused attention on the court's makeup.

No, the nation's highest court needs nine constitutional originalists who understand what its pre-Marbury v. Madison role is under Article III.  If that means a high court that "looks like" the Village People, the Swedish Bikini team, or a nontet of white guys, or a nontet of black ladies, or whatever, so be it.  "Diversity", in other words, is irrelevant when only one true criterion exists.

During a talk Friday at Brooklyn Law School, Sotomayor didn't mention the nomination of Judge Merrick Garland, who is highly respected but wouldn't add racial, religious, or educational diversity to the high court.

Which is to say, he is NOT "highly respected," or would be if he wasn't a Jew.  Isn't that really what Sotomayor is implying, when we get down to נעצי פליז?

But Sotomayor, the court's first Latina justice, said "it is important that we have greater diversity on the Supreme Court" and in the legal profession.

She never said why, though, because their is no substantive justification for it.  It's just thrown out there as if it was holy writ.  And then came the hailstorm of beans:

"I, for one, do think there is a disadvantage from having (five) Catholics, three Jews, everyone from an Ivy League school," several justices from New York City and no one who practiced criminal defense law outside white-collar settings, Sotomayor told the law school audience.

One of the most singularly racist statements ever to come out of the mouth of a Supreme Court Justice.  But the vile Latina will never be "credited" with the true content of her words, because she belongs to the "right tribe".

Of course, so does Merrick Garland.  Which I guess means that when the High Court needs someone to make a run to Starbucks to fetch the Justices' coffee, Sotomayor will have Garland do it.

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