Skip to comments.Congress Can Deny Barack Obama the Power to Replace Justice Scalia
Posted on 02/14/2016 8:01:06 PM PST by Texas Fossil
Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, "this vacancy should not be filled until we have a new President." Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: "The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons." Conor Friedersdorf says the no-vote stratagem is "illegitimate" because "the Senate does have an obligation to fulfill its "advice and consent" obligation. A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation." Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.
Clinton and Friedersdorf are overlooking the "consent" part of "advice and consent." Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.
Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.
At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.
Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.
As long as they hold unto the Senate in November. They get sworn in on the 3rd....and Obama has 14 days.
But they won’t.
Not to worry. Juan McQueeg will be along any minute to surrender.
Nope, they can actually reduce the number of members of the supreme court before then.
Unless ComDems gain house & senate, he cannot use that power.
My thoughts too. We need term limits for Senators yesterday.
Obama can go to hell and wait.
And if they don’t, we will have to deal with the weak kneed GOPe Traitors.
Not just “can”....MUST.
This election season has to be the wildest in a long time. One of the candidates has a massive investigation being conducted against her.
One of the candidates keeps getting sued over his eligibility.
The most conservative Justice is found dead with a pillow on his head and is pronounced dead over the phone.
Rubio said he isn't running again...so that's one seat...
I'm saying to be watchful...We need to hold the Senate to stop any appointment.
Totally Agree. The future of the nation depends on it.
And the GOP leadership needs a testro boost and a huge boldness injection.
Hillary is quite the little bomb thrower.
But Congress can change the number of Justices, which would require both houses.
Big Idiot and little Idiot.
Hillary? (Derr Hilderbeast aka the “Witch of Benghazi”)
Is this great or what?
S.RES. 334. EXPRESSING THE SENSE OF THE SENATE THAT THE PRES. SHOULD NOT MAKE RECESS APPOINTMENTS TO THE SUPREME COURT, EXCEPT TO PREVENT OR END A BREAKDOWN IN THE ADMINISTRATION OF THE COURTâS BUSINESS. KEATING MOTION TO RECOMMIT TO JUDICARY COMM.
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