Article

2016-02-14 Government

Obama Breaks Tradition, Will Nominate Supreme Court Successor to Scalia

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Posted by g(r)omgoru 2016-02-14 08:32|| || Front Page|| [11126 views ] Top

#1 Once again Obama will transform America and unfortunately the do nothing senate will break their do nothing tradition and support Obama. I have zero confidence in anyone in DC.

Posted by Airandee 2016-02-14 08:52|| 2016-02-14 08:52|| Front Page Top

#2 It is more than just zero confidence in anyone in DC, Airandee. It is the infinite confidence that anyone in DC will perpetuate the status quo and contribute to the destruction of our constitutional republic.

A District of Traitors, and I do not say it lightly.

Posted by Alaska Paul 2016-02-14 09:54|| 2016-02-14 09:54|| Front Page Top

#3 simply stay in session (no recess appointments) and refuse to take up his nominee. The Dems can caterwaul and whine, but can't force a vote

Posted by Frank G 2016-02-14 09:58|| 2016-02-14 09:58|| Front Page Top

#4 Obama knows his nominee doesn't have a chance. He'll nominate some one he can beat the Republicans over the head with.

Posted by Deacon Blues 2016-02-14 10:15|| 2016-02-14 10:15|| Front Page Top

#5 The GOP is called the 'Stupid Party' for a reason: I suspect there are at least a few Pub Senators who won't take the threat of "electoral annihilation" seriously and will consider voting in favor of whoever Champ sends forward. They'll then be "dismayed" and "surprised" and "disappointed" in the Pub rank and file come election day. Then they'll cut a deal with the Dems to preserve their own seats once the GOP falls apart.

Save the nomination for the new President and Senate, and work like hell to ensure we're not dealing with a new President Clinton. Any other play by the GOP puts an end to that party.

Posted by Steve White 2016-02-14 10:27|| 2016-02-14 10:27|| Front Page Top

#6 As chief executive can he recuse himself from the presidency and take an interim appointment leaving Biden to be the lame duck? Or worse, give Biden a candidate role when he abdicates.

Posted by Skidmark 2016-02-14 10:30|| 2016-02-14 10:30|| Front Page Top

#7 Any other play by the GOP puts an end to that party.

As you said they aren't called the Stupid Party for nothing.

And of course if Trump or Cruze look like they will get the nomination all hands are off. The GOP leadershit would rather see a socialist advocate on the bench than a true conservative.

Posted by CrazyFool 2016-02-14 12:38|| 2016-02-14 12:38|| Front Page Top

#8 Elizabeth Price Foley laid out that McDinglberry doesn't need to vote. Obama has the power for 8 more days to put in a recess appointment:

COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”:

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.

There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other. The Fox News reporter wrongly concludes:

[S]o long as both the House and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.

But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess.

The Senate last met on Thursday. When doing so, it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23.

So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn.

Whether the House of Representatives is in adjournment is irrelevant to the Recess Appointments Clause power. The only salience of the Adjournment Clause is that, in NLRB v. Noel Canning (2014), the Supreme Court looked to the Adjournment Clause as relevant evidence in its quest to ascertain a minimum period of time for determining the meaning of a “Recess of the Senate” in the Recess Appointments Clause. Specifically, the Court concluded:

The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power. . . .

If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well.

Thus, a Senate recess of fewer than 3 days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration.

So how long is the Senate’s present recess? It began on Friday, February 12, with the passage of S. Con. Res. 31 which states:

That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . .

Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it.

A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised.

Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session– i.e., until the end of the 114th Congress, which occurs on January 3, 2017.

But there is another potential wrinkle. Specifically, the Congressional Record of February 12 shows that Senate declared that it would be in pro forma session (where a member of the Senate gavels in and gavels out every few days), declaring:

A unanimous-consent agreement was reached providing that when the Senate completes its business on Friday, February 12, 2016, it adjourn, to then convene for pro forma sessions only, with no business being conducted on the following dates and times, and that following each pro forma session, the Senate adjourn until the next pro forma session: Monday, February 15, 2016, at 11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that when the Senate adjourns on Thursday, February 18, 2016, it next convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand adjourned until 3:00 p.m., on Monday, February 22, 2016.

Notice, however, that the pro forma status of the Senate’s recess is made conditional: “unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand [sic] adjourned until 3:00 p.m., on Monday, February 22, 2016.”

This matters because if the Senate is in pro forma session, the Noel Canning majority agreed that such pro forma sessions will block the president’s recess appointment power:

We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.

Unfortunately for the GOP Senate, however, the GOP-controlled House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro forma session.

If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama currently possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session.

So basically the fix is in for a ultra-statist, gun grabbing fuck to be put in for the year and tons of our freedoms can be permanently rolled back. Again I question the timing of the judge's death and you can bet the establishment will do everything it can to fuck our country over.

Posted by DarthVader 2016-02-14 14:03|| 2016-02-14 14:03|| Front Page Top

#9 Let's not get too wound up on the recess appointment idea: suppose Obama makes a recess appointment on the 21st? Ms. Foley's analysis appears sound and so it would likely be constitutional.

What would the new justice DO? In the next year, not much. Most of the current cases before the Court have been argued. There's no big 2A or 1A case sitting there. The new justice would (I would have to think) recuse her/himself on any case in which the justice was not present for the oral arguments, so those cases are still going to be decided by 8 votes. Yes, there are a few cases remaining for oral argument; one can parse those and see how bad the damage might be.

Likewise, the new justice is gone in January 2017. So even as the Court opens its next session in October, the new justice won't be there long enough to make much of an impact. The new justice, likely a rabid Democratic progressive, is certainly gone if a Pub is president, and might even be gone if Hilarity wins -- she'll want her own justice.

The new justice is an 11-month recess justice. She/he can't do much. There would be harm there to be sure but it's limited. Chief Justice Roberts still decides the agenda, and it still takes four justices to want to hear a case. Justice Kennedy would like slide some to the right since he understands that if he doesn't he's no longer in the sweet spot of being a 'swing' vote.

And a further point to ponder: if you're worried about the Pub base coming out in the fall, just install a Recess Justice Holder and see what happens.

Posted by Steve White 2016-02-14 15:01|| 2016-02-14 15:01|| Front Page Top

#10 I'm not sure where Obama gets the most bang for his buck:

1) Make a symbolic (for reasons mentioned above) appointment just to flip off Congress and a big chunk of America
vs
2) Nominate an actual candidate who will never ever get approved. A far-Left Vagino-American of color would do nicely and keep all the Progressive anti-Republican memes in play.

A tough choice for Barry.

Posted by SteveS 2016-02-14 15:16|| 2016-02-14 15:16|| Front Page Top

#11 And if he does appoint one - it may mean a long wait until Hillary can appoint him (assuming she wins of course).

Better to squash the FBI Investigation until after the election - the media will provide all the 'cover' if necessary and/or 'pardon' her (for her 'excellent' service to her country - note no mention of which country.). And then if she wins she can appoint him.

We can play these what-if games all day.

Posted by CrazyFool 2016-02-14 15:28|| 2016-02-14 15:28|| Front Page Top

#12 An inconvenient walk down memory lane for "The 0ne.": [LINK]

Posted by Blossom Unains5562 2016-02-14 15:31|| 2016-02-14 15:31|| Front Page Top

#13 This man sat in a tub full of fuitloops.
Think about it...

Posted by newc 2016-02-14 15:31|| 2016-02-14 15:31|| Front Page Top

#14 We can play these what-if games all day.

Now that football is done, it's either this or piling on the "how long would it take Russia to defeat Estonia" game

Posted by SteveS 2016-02-14 15:36|| 2016-02-14 15:36|| Front Page Top

#15 Barack Obama “Thrilled” Over Justice Scalia’s Death…

Posted by Blossom Unains5562 2016-02-14 15:40|| 2016-02-14 15:40|| Front Page Top

#16 Likewise, the new justice is gone in January 2017.

Unfortunately, this may not be the case.

From a comment by Casey M at Insty:

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)

Posted by charger 2016-02-14 16:28|| 2016-02-14 16:28|| Front Page Top

#17 Nothing is simple. see Tillman. It could blow up in his face.

Posted by Nimble Spemble 2016-02-14 21:04|| 2016-02-14 21:04|| Front Page Top

#18 Interesting.

Of course, it assumes a Senate with the will and guts to negate all the recess appointments.

Save for a few, I have no faith that the members of the McConnell Senate would do such a thing.

Posted by charger 2016-02-14 21:43|| 2016-02-14 21:43|| Front Page Top

#19 He knows the democrats will lose in November.

Posted by Rjschwarz 2016-02-14 21:51|| 2016-02-14 21:51|| Front Page Top

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