This page was last updated on July 13, 2018.
You can learn more about BCR’s leftster management here. “Leftster” is the combination of leftist and gangster, inspired by the left-originated “bankster.”
“I HAVE ONE QUESTION FOR KAVANAUGH. I’d like to know if he thinks the blockage of the next to last nominee, Garland by Obama, by McConnell’s refusal to even hear it, was in keeping with the Constitution. And if he thinks it was, would he elaborate on how it fits in with ‘strict constructionism.’ Hint to Bernie: go for it.”
[RWC] Note KD wrote, “in keeping with the Constitution,” not “constitutional.” I don’t know if KD considers them to be synonymous.
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
“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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
As you can see, the Constitution doesn’t say how quickly the President must nominate a candidate or how quickly the Senate must act on a nomination. Like it or not, the Senate’s action was constitutional.
While everyone is focused on the Senate “slow walking” and/or refusing to process a president’s nominee, nobody seems to notice a president can do the same thing. For example, a president could delay making a nomination if he thought the shorthanded court would issue rulings more “friendly” to his ideological and/or political goals. A president could also delay making a nomination if he thought the outcome of an upcoming election would allow him to get a “better” nominee approved.
KD implies BK considers himself to be a follower of “strict constructionism,” but doesn’t define “strict constructionism” for his readers. Here’s how BK described his judicial philosophy the night of his nomination:
“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Like it or not, Sen. Majority Leader Mitch McConnell (R-KY) acted on a tactic proposed by then-Sen. Joe Biden (D-DE) on June 25, 1992, when he thought then-President George H.W. Bush (R) might have the opportunity to appoint a Supreme Court justice just before the 1992 election. JB was hoping Bill Clinton (D) would win and didn’t want Mr. Bush to “steal” an SC appointment from Mr. Clinton. The vacancy didn’t occur, however, so Democrats didn’t have the opportunity to use the “Biden” rule.
Unfortunately, I couldn’t find a direct link to the full text of Sen. Biden’s proposal, so you’ll need to perform a couple of extra mouse clicks. Click on Senate for June 25, 1992, and you’ll see a list of Senate documents for that date. “40. REFORM OF THE CONFIRMATION PROCESS” is the full text of Sen. Biden’s proposal. You will also find “47. RESPONSE TO SENATOR BIDEN’S REMARKS ON THE CONFIRMATION PROCESS OF SUPREME COURT NOMINEES” by Sen. Strom Thurmond (D-1956-1964, R-1965-2003; SC).
In a comment in the discussion thread, KD wrote:
“The job of the POTUS is to make a good selection. The Job to the Senate, after querying and researching the candidate, is to advise and consent. The judiciary committee recommends, the Senate, after more debate, votes it up or down. It can be short and sweet, or long, loud and messy, even making the POTUS come up with someone better. All that is in the rules. But for the Senate majority leader to say, tough [sic], no more nominations for you. Don’t bother. We won’t deal with anyone you pick. Well, that’s something else, and you won’t find it anywhere in the Constitution.”
KD wrote, “Well, that’s something else, and you won’t find it anywhere in the Constitution.” That’s also true for most of the rest of the paragraph. As per Article. I. Section. 5. paragraph two, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” Since the Constitution doesn’t define “advice and consent of the Senate,” the Senate gets to define the process by enacting “Rules of its Proceedings.” Another example is the filibuster; it’s not in the Constitution but is a Senate rule, albeit one that varies.
In Peace, Friendship, Community, Cooperation, and Solidarity. <g>
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