Should Obama seat Merrick Garland?

[yurbud]

The argument for seating him is that the Senate, by refusing to hold confirmation hearings, has waived their right to advise and consent.

On this issue, both sides have high negatives: if he does seat him, it might set a precedent Republicans could abuse, for example, "Democrats did hold confirmation hearings in 24 hours, so they lost their shot."

On the other hand, letting Trump choose instead would be the ultimate reward for Mitch McConnell's eight years of obstruction, and set a percent for Republicans to do even worse the next time the Democrats win the White House.

I lean toward seating him as a way for Obama to admit his "go along to get along" tactic with Republicans mostly didn't work.

Also, even if people don't like Garland, who is about as middle of the road as you get, they might respect Obama for having the courage of his convictions.

And if the Republicans don't like it, they can always impeach Garland--or Obama.

39 votes, 0 passes | Time left: Unlimited
	Obama should seat Garland.
	36 (92%)
	Obama should not seat him.
	1 (3%)
	other
	2 (5%)
	0 DU members did not wish to select any of the options provided.
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[SHRED]

1. If he did it would only last 1 year correct?

[yurbud]

2. I don't know. got a source?

[Horse with no Name]

21. but it would help for a year

that's all I got

[Drunken Irishman]

26. Yes.

[SickOfTheOnePct]

3. I picked "other" because I don't believe he can seat him n/t

[guillaumeb]

4. My preference would be to filibuster for four years if necessary.

After all, Trump lost the popular vote by 2 million so he has no claim to any mandate.

[Lil Missy]

9. The other side of that coin is that a lot of law can be decided in our favor over the next 2 years.

[yurbud]

10. great point

[guillaumeb]

14. Much depends on who the Trump nominee will be.

At least it will not Be Jeff Sessions.

[stevenleser]

22. You are assuming the filibuster will still exist. I am waiting to see what will happen with that.

Each new session when the senate gets together to decide the rules of the senate, they can do away with all or part of the filibuster as they so choose.

When Democrats did away with the filibuster for judge appointments, I was glad on the one hand but I worried about the future consequences should the Republicans get control of the senate and particularly if they got the senate and the house and the Presidency.

Well, that future is here and I put nothing past them. Our hope here rests on the idea that senate Republicans respect the history of the rules of the senate. If that doesn't scare the crap out of you it should.

[guillaumeb]

28. Mitch McConnell did warn Harry Reid about partially eliminating the filibuster.

SO yes, we must wait and see what approach the GOP takes.

[world wide wally]

5. I think we can forget about using the filibuster.

Republicans will do away with that ASAP now that they have total control.

[longship]

6. With the advice and consent of the Senate.

Obama cannot just seat him.

[femmocrat]

7. The appointment would be for about 11 months:

Here’s how it would work. Article II, Section 2 of the Constitution states, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” This has been used for Supreme Court vacancies before—William Brennan began his Court tenure with a recess appointment in 1956. Any appointments made in this fashion expire at the end of the next Senate session. So a Garland appointment on January 3 would last until December 2017, the end of the first session of the 115th Congress.

>snip<

But even the Court’s most conservative members acknowledged that a president can make recess appointments during “inter-session” recesses—such as the break between the first and second year of a Congress, or the break between outgoing or incoming Congresses. There simply has to be an end point there, as a metaphysical matter. Theodore Roosevelt once used a short inter-session recess to make hundreds of appointments.

More at link: https://newrepublic.com/article/138787/obama-can-put-merrick-garland-supreme-court

[SickOfTheOnePct]

8. The 115th Congress will end in 2019

Not 2018, so it would be a two year appointment, if he were able to make it.

[FBaggins]

19. A "session" is not a term.

Normally, there's one session each calendar year (so that would end at latest in late 2017), but there's no legal or constitutional requirement that it be so. They can declare a session end of Feb 1st if they want to.

[WillowTree]

16. I doubt the Republicans will chance a complete recess for just that reason.

I'd be willing to bet that they'll keep a few members in town to gavel in and out over the break to keep a recess appointment from happening.

[FBaggins]

17. In all likelihood... not even that long

There are traditionally two sessions per term (one each calendar year)... but the Senate is the sole arbiter of when they hold sessions and how long they are. They could easily declare the then-current session to end on Inauguration Day.

[libtodeath]

11. Fuck it,withdraw his name and seat Hillary or Bernie!

[Sunlei]

12. Just do it President Obama, there is nothing to lose to TRY.

[Silent3]

13. Perhaps Obama can test the "pro forma" pretense of the Senate...

...actually being "in session" all the time being abused to thwart recess appointments.

As for whether the Senate has "has waived their right to advise and consent", in this case I don't think it's just the time period that comes into play. There has been an explicit declaration that the Senate will not even start the process necessary for advice and consent.

And as for the time period, I don't think there's any concern that treating many months of intentional neglect as a waiver would lead to treating 24 hours as a waiver. While the Constitution doesn't provide a specific time period, in the absence of such the courts are certainly free to decide what time period and circumstances are or are not "reasonable" for delay.

I think getting a favorable ruling from a majority of the current eight justices would be pretty good. Garland would, I suspect, have to recuse himself from taking part in this ruling.

[SickOfTheOnePct]

18. He already tested it

and lost with NLRB appointments.

[yurbud]

20. what you said

[Yo_Mama]

30. NLRB - lost big time. SC said it was unconstitutional.

I don't see how there is anything to gain, and let's be honest - all recess appts are temporary, so what's the point?

[FBaggins]

15. Other - he probably doesn't have a choice.

Or rather, it would only last for a few days.

[BainsBane]

23. Can he really do it?

If so, yes. Definitely.

[tritsofme]

24. Obama does not have the option to "seat" Garland without Senate confirmation.

The argument that a president can seat his nominees because he arbitrarily decides the Senate has not acted quick enough is absurd.

[yurbud]

25. What happens if you don't file court papers on time?

[Grey Lemercier]

27. there is no time period laid out in the Constitution for

advice and consent

[tritsofme]

31. The president is not a dictator, as we would take well to remember.

He cannot flout the Constitution and install his nominees because he has grown impatient with the Senate, sorry.

[yurbud]

32. the media and very wealthy, allow presidents to flout the Constitution when it suits them

torture
aggressive wars based on lies
support for terrorists to overthrow secular regimes
drone assassinations of Americans & foreigners without trial
warrantless wiretapping
Bailing out banks without requiring any accountability for execs as FDIC had a process to do.

Due process and the letter of the law only seem to matter when the very wealthy DON'T want something to happen.

[Yo_Mama]

29. It would be a stupid, stupid move. Obama isn't stupid.

First, constitutionally Garland could only be appointed to the SC for less than one year - recess appts are temporary.

Any possible gain would be minimal, and the possible negatives are pretty large. Standing constitutional precedent is that a recess appointment for Garland may not be made unless Congress adjourns for ten days, and it appears Congress will not.

So Obama would be setting himself and, by implication, the Democratic party up for a constitutional rebuff right when it would really hurt the party; trying to make an unconstitutional recess appointment would be a political lightning rod that could only hurt the person/party that attempts it.

My reading of the polls is that Obama will go out of office as a really popular figure, and he will be a strong rallying point for the future party. I would assume that throwing that away (historically, populations have reacted very negatively to end-runs around the constitutional SC appointment process, even for FDR) for a basically symbolic gesture is not anything that our current president would even consider.

I don't like not holding the hearings for Garland, but Congress could have done so and rejected him. It wouldn't change the result, would it?