The Senate is not mandated by the Constitution to advise and consent on Presidential nominations. SCOTUS appointments are covered in Article II, which lays out the powers and responsibilities of the President, not the Congress or the Senate. Article II, Section 2:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court
That does not place a mandate on the Senate, but on the President. The Senate is free to tell the President to go fuck himself, hopefully not in those words. If that happens, and again, it has happened a lot…Merrick Garland was not a unique situation in our history…the President can either withdraw the nomination, do nothing, or wait until the Senate is in recess and make a recess appointment, but that last part never really happens anymore. Eisenhower made a recess appointment (man, he is coming up a lot in this issue).
Is this system screwed up and full of bullshit? YES! But it’s what we have right now. Biden cannot expand the size of the Court on his own. He just can’t. I wish he could, but he can’t.
“advice and consent” of the Senate is a positive statement. It doesn’t include “ignore” and it doesn’t offer alternatives. And most certainly that power is granted to the whole Senate as a body, not to the nonexistent, in Constitutional terms, Majority Leader.
It should also be noted, while there are precedents where the Senate didn’t get to a nominee during a president’s term, never before was that an outright dismissal by one senator, nor was it anywhere near as long of a span of time.
Again, that advice and consent thing means that the President has to get the advice and consent of the Senate. The Senate is under no obligation to give it. There have been many other instances of the Senate refusing to take action on a nominee, not just because they didn’t get to it, but because they actively decided to not vote on it. Most of that, again, happened in the 18th century, but the laws on confirmations haven’t changed since then. It just fell out of fashion to do that.
As far as Senate Majority Leader not being in the Constitution, the Constitution gives the Senate the authority to appoint “other officers” (the officers specified in the Constitution are the Vice President and the President Pro Tempore) as they see fit, and to set their own rules for how they conduct the Senate’s business. The Constitution intentionally didn’t specify all that, but it does give the Senate the power to create offices like Majority Leader, Minority Leader, etc., and give them whatever authority they want, as long as it doesn’t violate anything specified in the Constitution.
Look, I’m not going to keep going around on this. I’m as frustrated with Mitch McConnell as you clearly are. But the way out of this right now is electing more Democrats. At all levels of government.
The change in course is a significant one. If the Justice Department had decided Trump were covered under a law called the Westfall Act, he would, in essence, have secured immunity from the civil claims. That’s because federal workers are shielded from those kinds of lawsuits so long as the workers are acting within the bounds of their jobs.
Said another way, the Westfall Act lets federal workers get away with committing acts which otherwise would be considered crimes.
That’s an odd an ahistorical way of looking at it. The Constitution makes it very explicit that the Senate has a role to play in the confirmation process and doesn’t hint that “opting out” is an option.
Look, I get that you have studied Constitutional Law and know a lot more about the formal aspects of that in the law. But I think the legal profession overall has forgotten that the Constitution was meant to be approachable to the people of the country. As such, it is important to read the actual words and fit them into the context of the document as the blueprint for a government that was meant to persist. It’s not a suicide pact.
It was written to create three branches of government that were interdependent with checks and balances. The relationship you are describing with the strange interpretation of what “advise and consent” means creates a structure where one branch of the legislature can prevent the existence of SCOTUS despite the actions of the executive. That simply can’t be what the Constitution means, and still retain integrity of intent and structure.
Multiply the above by 10,000 when that power is concentrated in one Senator not elected to a Constitutionally-defined position. The composition and even the existence of SCOTUS cannot be determined by the representative of just voters of Kentucky, or any one state.
They’ve been pulling this football for three years.Every person I’ve seen railroaded through this system was put into jail a lot faster than three years.
“Trump’s mountain of legal problems is ever-deepening.”
The AI needs to learn about mixed metaphors. But at least it knows this guy is finally learning that he first FA’d and now he will FO.
As for the impact of the Presidential Records Act on this prosecution, any argument that it mandates dismissal of the Indictment or forms a defense to the charges here borders on frivolous. The PRA is not a criminal statute, and in no way purports to address the retention of national security information. The Defendants are, of course, free to make whatever arguments they like for dismissal of the Indictment, and the Government will respond promptly. But they should not be permitted to gesture at a baseless legal argument, call it “novel,” and then claim that the Court will require an indefinite continuance in order to resolve it.
