About this Senate jury...

[yellerpup]

How can they be allowed to vote if they didn't attend the whole trial? A juror can't drift in and out of court in a regular trial. A juror can't run across town to visit with Fox News and come back and cast a vote. Jurors don't leave the courtroom when they get bored; you're obliged to listen to the evidence.

21 Republican Senators were out of the room at the same time yesterday. All of them should be prohibited from voting on impeachment.

[Ohiogal]

1. I agree 100%

And jail them for contempt!

[yellerpup]

7. Fair is fair!

[Sherman A1]

2. I know it wasn't possible but,

would have been nice to call a vote right when they were gone. It would have either passed by a good margin or you would have seen a foot race back to the chamber. Might have done them some good to get some excitement and exercise.

[yellerpup]

6. Kind of a dream come true

to see a footrace like that!

[onenote]

3. They are not a "jury" and this isn't a judicial trial

For example, the US Supreme Court has held that the Constitution doesn't bar the Senate, as is provided for in the rules governing impeachment proceedings, from appointing a committee to review evidence and hear testimony in lieu of the entire Senate. Nixon v. US.

[yellerpup]

4. Thanks for that, onenote.

I was not aware that the Senate had appointed a review committee.

[onenote]

8. They haven't in this instance.

They could, and maybe they will, but i doubt it.

But the point is that the Constitution doesn't require an impeachment proceeding to be conducted the same way as a judicial trial.

[treestar]

5. Would the court hold that they could vote without

Attending?

[onenote]

9. It's entirely possible that the Court would find the question nonjusticiable

based on the Nixon v. US precedent.

[treestar]

16. What rationale could they give for that?

[onenote]

23. Whatever rationale or rationales or lack thereof subscribed to by five justices

I'm being a bit facetious, but the hard, cold reality is that there is no further review of a SCOTUS decision. It's the end of the road. As a result, whatever outcome garners the support of at least five justices stands. The rationale or rationales that each justice has for supporting a particular outcome -- good, bad, indifferent or non-existent -- is effectively irrelevant.

That being said, the Court probably would cite the Nixon v. US precedent and the reasoning of the majority opinion in that case: namely, that an issue is non-justiciable where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." The Constitution clearly contains a textual commitment of impeachment trials "solely" to the Senate and there are only three very specific requirements for such trials: the oath or affirmation requirement; the requirement that the CJ "preside" when the President is tried, and that no one shall be convicted without the concurrence of 2/3 of the Senators present.

The Court almost certainly would conclude that there is no judicially discoverable and manageable standard for imposing an "attendance" prerequisite on those permitted to vote in an impeachment trial, given that absence of any such "attendance" requirement in the Constitution. What level of attendance would the Court presume was required in the absence of any such mandate in the Constitution? 100 percent? 90 percent? 50 percent? Would the courts be called upon to quiz those in attendance to determine if they were paying attention?

The transcript of the trial is available to every Senator in the Congressional Record the day after each session. The Supreme Court itself recognizes that the availability of written briefs and transcripts of oral presentations is an adequate substitute for actually attending a Supreme Court argument. That is why the fact that Justice Ginsburg has missed several oral arguments this year does not disqualify her from participating and casting a vote in those cases. And it is why the Court will follow Nixon v. US if someone (who?) wanted to challenge an impeachment verdict on the grounds some of the votes were cast by Senators who did not attend the trial.

[Hermit-The-Prog]

32. Constitution says "two thirds of the members present" to convict

The Constitution doesn't say how many Senators must be present to try an impeachment. It does say the Senate sets its own rules, which are being broken. Too bad the Constitution leaves it to the Senate to discipline its members.

[treestar]

35. It would be tough to write, with a straight face

We can do nothing whatsoever about impeachment - it can be as unjust as the Senate rules want it to be. So that a Republican majority could remove any Democratic President if they had the 67 votes. For that matter, the Democrats could too. Hard to think the Founders really meant for that to happen. "Present" probably meant something like mentally present to hear the evidence.

[Coleman]

12. If they are present, they can vote

Again, this is not a judicial process. Due process does not apply. This is a political process. But I thought the rules established by the Senate prohibits any Senator from leaving, even for a bathroom break.

[Arkansas Granny]

15. My understanding was that the Republicans in the Senate had established the rules for the trial.

LIke you, I thought the rules mandated that all Senators be present at all times.

[onenote]

24. The "rules" are really "guidelines" and are intentionally wish-washy

The decorum guidelines, emobodied in a letter signed jointly by McConnell and Schumer, are not hard and fast "rules." For example, the decorum guidelines state that "Senators should plan to be in attendance at all times during the proceedings." "Plan to be" not "must be". Similarly, the guidelines state that "Members should refrain from talking to neighboring Senators while the case is being presented" -- should, not must. And continuing along those same lines: "Reading materials should be confined to only those readings which pertain to the matter before the Senate" -- again, "should" not "must."

Even where it is stated that a restriction will be "strictly enforced," the language used leaves the door open:

"During the impeachment proceedings, standing will not be permitted on the floor and this requirement
will be strictly enforced. Accordingly, all Senators are requested to remain in their seats at all times they
are on the Senate floor during the impeachment proceedings" -- "requested" not "required".

As indicated, these decorum guidelines were not adopted by the Senate Republicans over the objections of Senate Democrats. They were simply agreed to jointly by McConnell and Schumer.

[Bayard]

28. This was a rule that was covered by the media

Saying, you can't expect a bunch of older people with bladder problems to sit that long. But that was McConnell's rule.

[onenote]

34. The media mischaracterized it.

Not a surprise.
It's not a rule. Its a guideline. It's not mandatory. And it was the product of a joint letter signed by McConnell and Schumer, not a vote of the Senate.

[mainstreetonce]

10. There should be a little device on their seats .

If they are out for more than five minutes during testimony,they are did qualified.

The least the judge should do is make an announcement that people were observed leaving yesterday and if they do it again,they will be disqualified.

[yellerpup]

18. Good suggestion.

Fair warning, then boom.

[onenote]

25. Roberts has no authority to make such a ruling.

There is no requirement in the Constitution or the Senate rules that members be continuously present during an impeachment trial. Even the decorum guidelines merely state that Senators "should plan to be in attendance at all times" not that they are required to be in attendance at all times.

Under the circumstances, and given that the Supreme Court itself doesn't require a Justice to be present at an oral argument in order to participate and cast a vote in a case, there is zero chance that Roberts would entertain a motion to disqualify a Senator (who will have access to a transcript of the proceedings in the Congressional Record the next day) for not being in attendance for some arbitrarily set period of time.

[dlk]

11. Chief Justice Roberts isn't doing his job - he's slacking off

The press is failing America by not calling him out. Roberts is acting like a frat boy at a social gathering and Republican senators are showing off their entitlement. There is a definite double standard going on here.

[yellerpup]

19. I was hoping for better from CJ Roberts.

I was expecting better.

[dlk]

21. I've never been a fan and am, sadly, not surprised

This has been a pathetic job of presiding.

[onenote]

26. You were expecting him to do things he isn't required or allowed to do.

[ConstanceCee]

13. Who?

Can we find out who they were and how long they were gone?

[yellerpup]

20. I'm sure we could.

Marsha Blackburn was on Fox during the trial yesterday. How long they were gone? They are not supposed to leave at all, so how long isn't an issue.

[FM123]

14. If the rules say you may not leave and they do, they have just broken the rules.

I too am wondering if there are consequences of some kind....

[yellerpup]

17. Breaking the rules should lead to consequences.

I don't know what they are either.

[dlk]

22. Republicans have shown the rules are only for the other guy & for suckers

They are beneath contempt. I remember their non-stop drum beating and chest pounding over the rule of law during the Clinton impeachment. As we have seen repeatedly since, it was really only political theater. They are bad actors in more ways than one.

[onenote]

27. See post 24: Guidelines, not rules. And wishy-washy at that.

[empedocles]

29. My best hope is that our Speaker is not at all surprised at this point, and

has prepared for it.

My second hope, is far fetched. Fundamentally, the purpose of the 3 brances of government, is checks and balances. Roberts, conceivably could consider that 'corruption' is obvious here and worth 'checks and balances'. From that standpoint, Roberts could do something more than direct traffic.

Granted, such a consideration, is beyond Robert's 'metier', etc., etc.

And, he has his Court interests to consider.

However, he has his own Roberts Court reputation, - and the ghost of Chief Justice Roger Taney . . . lurks, and ala Obamacare . . .

. . . may even 'loom' large . . .

[yellerpup]

31. I am confident our Speaker is prepared.

Fearless.

[UTUSN]

30. Ya beat me to it: Since when are "jurors" allowed to miss trial sessions?!

[yellerpup]

33. It puzzles me how this can go unnoticed.

I'm very proud of Democrats.