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Congress Can Deny Barack Obama the Power to Replace Justice Scalia
Cato Institute ^ | Feb. 14, 2016 | Michael F. Cannon

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.


TOPICS: Government; News/Current Events
KEYWORDS: 114th; bhoscotus; cato; congress; nominate; obama; scalia
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To: jsanders2001
We need term limits for Senators yesterday.

We need an Article V Convention, because the federal government is way too powerful. Even if Congress is term limited, the temptation to abuse federal power will be too great for most Senators and Representatives to resist.

41 posted on 02/14/2016 9:04:32 PM PST by Repeal 16-17 (Let me know when the Shooting starts.)
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To: Texas Fossil
[Hillary:] "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."

But it can and must block the 0bamanation's nominee until the next president; for not to do so threatens the very character and future of the nation. And, of course, the next president, if Clinton or Sanders, will be able to nominate their favorite leftist activist jurist to the SCOTUS.

42 posted on 02/14/2016 10:06:02 PM PST by luvbach1 (We are finished. It will just take a while before everyone realizes it.)
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To: 1035rep

But as someone pointed out earlier, if the Dems win the Senate this year, they will be sworn in on Jan. 3. Even if a Republican is elected, that person won’t be sworn in for another 17 days, which means that Obama would still be president and could slip a nominee thru to the newly elected Democrat controlled Senate in that time frame.


43 posted on 02/14/2016 11:00:46 PM PST by murron
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To: Texas Fossil

Yes, but what will Rubio and his gang of apes do?


44 posted on 02/14/2016 11:24:30 PM PST by urbanpovertylawcenter (the law and poverty collide in an urban setting and sparks fly)
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To: Texas Fossil
Congress can deny...

Congress is made up of Democrats and Republicans. Both parties want a left wing court. Will Congress deny?

45 posted on 02/15/2016 1:18:44 AM PST by arthurus (Het is waar. Tutti i liberali sono feccia.)
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To: proud American in Canada

Understand fully and agree.


46 posted on 02/15/2016 2:39:31 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: Baynative

Yes, I know, McCain really sucks.

And yes, he is traitor. ? did I actually say that out loud.


47 posted on 02/15/2016 2:42:26 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: bigbob

It is fact, Congress “can” (if they choose) change the number of justices. That would end the appointment.


48 posted on 02/15/2016 2:45:53 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: Angels27

Indeed they can.


49 posted on 02/15/2016 2:47:45 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: Texas Fossil
Congress Can Deny Barack Obama the Power to Replace Justice Scalia

They can also deny a President Cruz or President Trump the power to replace Justice Scalia, by filibustering.

50 posted on 02/15/2016 2:58:55 AM PST by DoodleDawg
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To: Texas Fossil

Two words: Orren Hatch. We have Kagan and Sotomayor, two completely unqualified people thanks to this smarmy cretin.


51 posted on 02/15/2016 3:19:22 AM PST by Jimmy Valentine (DemocRATS - when they speak, they lie; when they are silent, they are stealing the American Dream)
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To: Rome2000

thanks for the link, very interesting history.


52 posted on 02/15/2016 3:19:35 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: DoodleDawg

Senate need not filibuster, they can simply tie it up in committed until Obozo is gone. Obama can nominate, but cannot make a recess appointment.


53 posted on 02/15/2016 3:22:29 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: Jimmy Valentine

Yes. And he is one of a number of very loathsome individuals serving in congress. And yes, both justices are unqualified, but were nominated for an agenda, not for qualifications.


54 posted on 02/15/2016 3:25:20 AM PST by Texas Fossil ((Texas is not where you were born, but a Free State of Heart, Mind & Attitude!))
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To: Texas Fossil
Senate need not filibuster, they can simply tie it up in committed until Obozo is gone. Obama can nominate, but cannot make a recess appointment.

The Republicans can do that because they control the Senate. But the filibuster is still in place and the Democrats can keep any Republican nominee from being voted on. It could be that future Supreme Court vacancies are filled only by recess appointments, which would end the lifetime tenure that they now have.

55 posted on 02/15/2016 3:31:46 AM PST by DoodleDawg
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To: Texas Fossil
On the Conservative Review Scorecard there are 12 senators who rate a "C" or above. After that look at all the potential switch votes Harry Reid and Barack Obama have to work with.
56 posted on 02/15/2016 9:10:18 AM PST by Baynative (The people promising to raise taxes and support abortion are already rich and already born.)
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To: wastedyears

Dems can read this a weep... they wrote this when the shoe was on the other foot....

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 COURT’S BUSINESS. KEATING MOTION TO RECOMMIT TO JUDICARY COMM.

https://www.govtrack.us/congress/votes/86-1960/s415

http://www.washingtonexaminer.com/schumer-in-2007-dont-confirm-any-bush-supreme-court-nominee/article/2583283


57 posted on 02/15/2016 9:14:12 AM PST by GOPJ (Hillary has 416 'superdelegates'... Bernie has 14... Wake up democrats - the election's rigged.)
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To: Texas Fossil
Hillary? (Derr Hilderbeast aka the “Witch of Benghazi”)

I think the "Traitor of Benghazi" is more accurate but both will work. ;)

58 posted on 02/15/2016 10:52:35 AM PST by Boomer (Liberal Propaganda is like visual/audio Meth. It ruins the mind and rots the teeth.)
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To: Texas Fossil

A Reasoned Winning Argument for Congress to use the authority they already have concerning approval of nominations to the court.


That would require backbone....


59 posted on 02/15/2016 10:56:17 AM PST by Freedom56v2
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To: bigbob
Unfortunately, this is already a win/win for 0bama. If the SC stays at 4 and 4 (with no new nominee this year) all the cases will fall back to the lower "blue" courts. At least according to this article:

http://www.chicagotribune.com/news/opinion/commentary/ct-scalia-obama-supreme-court-appointment-republicans-20160215-story.html

60 posted on 02/15/2016 11:08:19 AM PST by HandyDandy (Don't make up stuff. It just wastes everybody's time.)
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