I've watched this 10 times and laughed ever time:
Obama is saying that he has the power under the Constitution to nominate someone to fill the vacancy on the Supreme Court even in the last year of his presidency and that there's nothing in the Constitution that says he can't. Of course, the Constitution also provides that the appointment isn't complete until the Senate votes to confirm, and there's nothing that says that power must be exercised within a certain period of time. These are opposing powers and the present struggle is political, which the President surely knows. Part of the politics is making claims based on interpretations of the Constitution, and each branch of government tends to interpret its own power broadly. It's interesting to me to watch how the rhetoric plays out. I mean, it's temping to say "It's pretty fucking hard to find that in the Constitution." And it's hilarious to get as close as he did to saying that.
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I got an email from Leahy that says that constitution clearly states the the Senate has a duty to "consent" to Obama's choice. If he tried that on his girlfriend, he would be up for rape, well, no he wouldn't , he's a Democrat.
The Constitutional Law professor. Maybe he learned an edited version. He certainly didn't spend much time on Article I
S*** like this negates the arguments that Trump's disposition makes him unqualified for the office.
It's pretty fucking hard to believe that guy got re-elected.
His entire press conference was full of deception, spin and fantasy. His take on Syria and Russia just proves how delusional he is.
I agree with his point, but man oh man, do I hate that man's smug, snotty way of talking. It sounds so beta and whiny.
Mark Knoeler of CBS has a running total of Obama's golf outings. I wish someone had a running total of Obama's use of the straw man fallacy.
Unless, of course he is held to the standard of the President of the United States and not a troll on the Huffpost. Disgusting behavior, President as Internet troll.
It's not Article I, it's Article II.
Section 2:
"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."
Here's the notes from the constitutional convention:
Mr. Madison, suggested that the Judges might be appointed by the Executives with the concurrence of 1/3 at least of the 2d. branch. This would unite the advantage of responsibility in the Executive with the security afforded in the 2d. branch agst. any incautious or corrupt nomination by the Executive.
Mr. Sherman, was clearly for an election by the Senate. It would be composed of men nearly equal to the Executive, and would of course have on the whole more wisdom. They would bring into their deliberations a more diffusive knowledge of characters. It would be less easy for candidates to intrigue with them, than with the Executive Magistrate. For these reasons he thought there would be a better security for a proper choice in the Senate than in the Executive.
Mr. Randolph. It is true that when the appt. of the Judges was vested in the 2d. branch an equality of votes had not been given to it. Yet he had rather leave the appointmt. there than give it to the Executive. He thought the advantage of personal responsibility might be gained in the Senate by requiring the respective votes of the members to be entered on the Journal. He thought too that the hope of receiving appts. would be more diffusive if they depended on the Senate, the members of which wd. be diffusively known, than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened
Mr. Bedford thought there were solid reasons agst. leaving the appointment to the Executive. He must trust more to information than the Senate. It would put it in his power to gain over the larger States, by gratifying them with a preference of their Citizens. The responsibility of the Executive so much talked of was chimerical. He could not be punished for mistakes.
Mr. Ghorum remarked that the Senate could have no better information than the Executive They must like him, trust to information from the members belonging to the particular State where the Candidate resided. The Executive would certainly be more answerable for a good appointment, as the whole blame of a bad one would fall on him alone. He did not mean that he would be answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of the Judges to the Executive, instead of the 2d. branch
Mas. ay. Cont. no. Pa. ay. Del. no. Md. no Va. no. N. C. no. S. C. no--Geo. absent. [Ayes--2; noes--6; absent--1.]
Mr. Ghorum moved "that the Judges be nominated and appointed by the Executive, by & with the advice & consent of the 2d branch & every such nomination shall be made at least days prior to such appointment". This mode he said had been ratified by the experience of 140 years in Massachussts. If the appt. should be left to either branch of the Legislature, it will be a mere piece of jobbing.
Mr. Govr. Morris 2ded. & supported the motion.
Mr. Sherman thought it less objectionable than an absolute appointment by the Executive; but disliked it as too much fettering the Senate.
Besides all of the racial healing accomplished by this Administration, I really appreciate the classy language.
"Leahy ... says that constitution clearly states the the Senate has a duty to "consent" to Obama's choice"
One of the risks to the Republic – which I had never recognized until this century – is that its citizens will become too illiterate to read and correctly interpret its founding documents.
"not ... answerable under any other penalty than that of public censure, which with honorable minds was a sufficient one."
Thanks for the morning chuckle, Althouse.
David Begley said...
It's pretty fucking hard to believe that guy got re-elected.
His entire press conference was full of deception, spin and fantasy. His take on Syria and Russia just proves how delusional he is.
Well, I couldn't say it better than that.
=============================================
Given recent congressional elections the Senate has a duty not to confirm another of Zero's leftist political actors to the Sup Ct.
It's pretty fucking hard to find abortion, gay marriage or racial quotas in the constitution, but that hasn't stopped the left from finding then there. Should the president actually read the constitution he'll no doubt see that it's the Senate's job to approve judicial nominees.
It may be pretty fucking hard for President (constitutional law professor) Obama to find, but it took me longer to type this than to find the relevant passage in the constitution. Of course, I knew it was there, so it was just a matter of doing some word searching.
"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."
Yes, I know he knows about this section of the constitution--but he certainly makes himself look like an idiot by pretending ignorance.
It's pretty fucking hard to believe that guy was allowed to lecture on even the part of the Constitution (14th) that he claims as his credential as a constitutional scholar.
Obama is the poster child for everything that is wrong with affirmative action.
I enjoy your blog. I just want to say, though, that I for one think Obama is a great president. Our world of intelligent people is not unanimously against him.
That's our Barry--always a classy and mature guy. Remember when he flipped the bird at his critics while slowly purporting the scratch his cheek? This is the behavior of an unruly adolescent.
So much promise, so much failure.
which with honorable minds
That's always been the catch, hasn't it. The boot strap by which the whole edifice is made to work, if I may be allowed a mixed metaphor.
Elections have consequences.
A Constitution is not something we "believe" in. I think this choice of words by Obama reflects his philosophy that the Constitution is fungible.
The Constitution is an agreement we formed as a nation and our elected officials swear an oath to preserve, protect and defend it. As such, it's important to understand it as it was originally intended and not to just reinterpret it and change it's meaning without going through the hard work of properly amending it.
Judicial declarations can't change the original meaning and mere acts of legislation can't change the original meaning. Only amendments can do that and even the amendments need to be understood as they were originally intended.
Real American said...
It's pretty fucking hard to find abortion, gay marriage or racial quotas in the constitution, but that hasn't stopped the left from finding then there.
Megan McArdle has a nice post on this.
Roy Jacobsen said...
Elections have consequences.
Yeah, but why do they always have to be negative consequences? Wouldn't it be nice, just once, to have an election with positive consequences?
Maybe that will be my hope for the next 10 years...
I just want to say, though, that I for one think Obama is a great president.
It's not much of a cheese shop really, is it?
Finest in the district, sir.
So Susan Sup--what do you like the best? All the racial healing? The peace and security that he has brought to the Middle East and Europe? The care that he has taken to assure that the laws are faithfully executed? The accountability that he has brought to federal agencies like the EPA (see recent toxic spill in Colorado caused by the EPA), the VA, and the IRS (nuff said).
You have a strange idea of greatness.
All political.
If President Obama wants to pick a sitting Appeals Court judge who is not radical, my guess is that his pick will be confirmed.
If he wants to pick a more "transformational" candidate, then all bets are off, and probably should be.
The controversy about this is a stage show in an election year.
I wonder if Leahy feels strongly that Obama is bound to take the advice of the Senate in his choice? Ha ha ha! No I don't! It's machtgelüst all the way down!
You have a strange idea of greatness
If you wanna make an omelette, you gotta break some eggs.
Michael K's Article I reference might have been about the POTUS's predilection to make his own laws...
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Of course, with decisions like Obergefell, we see that the Supreme Court liberals have made the Court an essentially political organization. So they shouldn't be heard to complain when the Court's staffing is treated as an essentially matter.
The part that has me laughing is Obama talking about how the office isn't a reality show (Bear Grylls), or marketing (Between 2 Ferns). It's really hard, he says, after a weekend golfing in California.
This is a President with 201 Credits on IMDB. Yet he wants to criticize Donald Trump's television show (which at least raises money for charity).
Ha hahaha!
Amadeus 48 - my point is not to convince you or others. It's only to say there is a whole other group who likes Obama (and I'm a Republican btw). I'll bet historians agree with me: $100? :-)
I Have Misplaced My Pants said...
I agree with his point, but man oh man, do I hate that man's smug, snotty way of talking.
Exactly my reaction. He's right, but that smirk and that "oh ho ho! now what, Constitution-lovers?" tone. As though Obama cares what the Constitution says any time it doesn't serve his ends. Fuck him. He can nominate all he wants, and the Senate can vote no. Maybe he can point out where in the Constitution it says the Senate has to approve whatever left-wing hack he nominates.
I thought him justifying his filibustering of Alito but saying Republicans shouldn't do that to him was nicely sociopathic.
It's only to say there is a whole other group who likes Obama (and I'm a Republican btw).
No, you're not.
It's only to say there is a whole other group who likes Obama (and I'm a Republican btw).
So you voted for Bush then, probably twice. And you vote Republican for Congress?
Here's an easy one, explain why you voted for Bush. Or if you are a "Republican" and have only voted Democrat in the past four presidential elections, you could explain why you voted for a Republican for the Senate? Ooooh, didn't do that either? What about Congress? Well, um.
You could give us the Republican point of view as to why somebody might not like Obama, a point of view you considered, as a Republican, and then rejected..
I'm sorry. So many liberals try that transparent gambit, you will forgive us for assuming that you are lying, and set us straight directly!
Tim. I can show you my voter registration card if that will put you mind at ease.
"....than if they depended on a single man who could not be personally known to a very great extent; and consequently that opposition to the System, would be so far weakened"
"opposition to the System" is the real issue here.
Of course, the Constitution also provides that the appointment isn't complete until the Senate votes to confirm, and there's nothing that says that power must be exercised within a certain period of time.
There is the implication maybe that it will be voted up or down within a reasonable time.
There is a provisionn for a recess appointment when the Senate is not in session, and that person continues to occupy the job until the end of the next session. I guess that means there's an understanding that the Senate might not deal with it or mght take some time, and the Constitution allows for that. It goves the maximum opportunity to get someone confirmed.
I think he or she has to leave the job immediately if voted down - this would actually turn the power of the filibuster in favor of the Democrats, as the Republicans would need a vote to push President Obama's nominee off the bench.
I am sure actyally, of all the rules taht govern recess appointments, and there was a recent Supreme Court case. It's probably up to the senate to say if it is in session, so Mitch McConnell could keep the senate in session, meeting once every three days, or maybe twice a week just to adjourn) all the way up to noon of January 3, 2017. The new Congress would have to assemble right away - or maybe that's not a recess.
Obama's pretending ignorance as to what kind of objections there might be to his nominee - as to what this is all about.
Well, he's right, isn't he? The GOP's claims that Presidents shouldn't make Supreme Court appointments in the last year of their term, or that "the people" should have a say in an intervening election, are, while not without some antecedents, flimsy and contrived. He has every right and perhaps a duty to send a nomination up the hill. It seems to me that the reason why Senators who care about the rule of law should block any such nominee is because Justice Scalia was a national hero, a titan in legal history, and his replacement cannot be appointed by a man who stands for the ersatz constitution that Scalia spent his career demolishing in favor of the real thing. If the President were willing and able to send up a textualist, originalist nominee, the Senate should consider her. To announce blanket opposition is merely (if it is reasonable at all) to announce one's judgement that he is very unlikely to do any such thing.
It's hard to find a better example of Democrat hypocrisy than this topic. Back in 2007, Schumer called for Bush not to nominate anyone for the remainder of his term. Today, he's trying to claim "that was then, this is now". Obama voted to filibuster a SC nomination but today wants a speedy confirmation. Fuck them both.
Between the near f-bomb and lack of necktie, the man is showing little respect for his audience (both those present and those who see it later) or office.
Susan Sup--You have a touching faith in the objectivity of historians as a group. I see a lot of argle-bargle and yap supporting each historian's politics (most often progressive). Don't you see that?
I have a preference for basing my conclusions on what I have experienced. As I said earlier about Obama: so much promise, so much failure.
I think he was promoted too fast to really understand the presidential political arts of persuasion, cajolery, and building on common ground. He would have been a much more successful president if he had spent four years as governor of Illinois (although politics here is totally deranged by a long tradition of political machines in both parties) before he ran for the presidency. Without the appropriate experience, he defaulted to a celebrity approach to the office, which hindered his own efforts to build consensus.
He was not well served by the puny legislative leaders Reid and Pelosi who refused to consult with and get buy-in from at least some members of the GOP. So we end up with a president who has seen his party driven from the Congress, the state legislatures and the governorships. He is remarkable for the number of his golf boondoggles and his isolation from the Congress. He is a celebrity--he appears in all sorts of pop culture venues, and when he speaks from the presidential podium, he is remarkable for his unrelenting sneering at his opponents...as in the video above.
This is not presidential; this is not productive; this makes no difference to the outcome of anything, and yet, he believes it is the right thing to do. I don't know if he is a bad man or a good man, but I think the evidence is clear that he is a very self-centered man.
This is someone who doesn't like the job, doesn't understand the job, and isn't very good at the job.
Susan Sup--and if like him, you are welcome to him. Take him, please!
Tim. I can show you my voter registration card if that will put you mind at ease
I didn't think you could do it so it's not like I am disappointed or anything. Not like I have the slightest doubt that would make me restless. I could show you my sister's voter ID, and she is a Sanders supporter and has always voted in Republican primaries strategically
It's been my personal experience that I tend to curse less when wearing a necktie.
Who's said Obama can't nominate a replacement for Scalia? I haven't heard anyone say this. He's free to make a nomination, just like the Senate is free to decide to not vote on it until February 2017.
Glad to see he's got so much slack time he can sit around and gripe about things that have no bearing on reality.
Hey Susan Sup -- here, pull the other one!
And on the subject of the objectivity of historians:
When I was in school, two of the presidents always included in the near-great zone in polls of historians were Woodrow Wilson, as a paladin of progressivism, and Andrew Jackson, the great populist and founder of the modern Democratic Party.
Today, those calls are under review (as they say in the NFL). Why? It turns out that Wilson was a virulent racist who re-segregated the civil service and Jackson was a slave owner who deported the southern Native Americans to the west. Are these new facts? No, but when the call comes down from the booth, I believe both Wilson and Jackson will be sent down the standings. Our history is what it is. Historians put forward an argument about what it means and some are not above editing the evidence. The arguments change over time, some prevail, some decline. Read any new iterations of the Whig interpretation of history recently? But the fact is, history is an argument, which sometimes goes badly off course and into the underbrush as the current crop of historians tries to put their stamp on the past. Read history, critically evaluate what you read, but don't accept it as the truth. It's just the latest.
NorthOfTheOneOhOne said…
“Who's said Obama can't nominate a replacement for Scalia?”
Perhaps what’s really chapping his ass is that he fears that we have effectively thwarted him nominating anyone. Dahlia Lithwick talked about this on Amicus over the weekend: Who would accept a nomination? It’s hard enough to find someone willing to go through the confirmation process when they have a shot at being confirmed, but who the frak would put their life on hold for a year and potentially be ripped to shreds in full view of the public, all for absolutely nothing, for absolutely no chance of confirmation? who would do that?
Obama's perspective is corrupted by his faith pulled from the dark fringes of a penumbra.
Step into the light. Lose your pro-choice religion.
The political theater is good and would be great if a nominee got before the judiciary committee.
Just keep asking the nominee questions about guns, whether the person think Congress can make people eat broccoli, whether Obama can just grant amnesty without Congress, etc. Just start reading from court opinions and ask whether the person agrees with the ruling.
Then ask the person of they own a firearm and ask if they believe the government can ban guns.
It would be fun but what sane nominee would allow herself to be a punching board?
Susan Sup said...
I enjoy your blog. I just want to say, though, that I for one think Obama is a great president.
Great as in Stalin was a great Soviet leader?
Our world of intelligent people is not unanimously against him.
Ah. I think you fundamentally misunderstand what 'intelligent' means.
"I'll bet historians agree with me: $100? :-)"
Who gives a shit about historians?
He's an anti-American asshole who has governed like a tyrant and a deceitful motherfucker, and he should be opposed at every turn.
The President continually uses the "Strawman" argument when he speaks. It's dishonest and pathetic.
Nobody on Planet Earth argues that the Constitution prevents him from nominating someone to the absent seat or, more drastically, making a recess appointment.
He can appoint, and the Senate can reject.
The question is whether he should do so during an election season.
That was the weed talking.
Who gives a shit about historians?
Exactly why I am certain she is not a Republican. History is very important, the opinion of left-leaning academic historians? Not so much.
"There are some who believe that the president, having won the election, should have complete authority to appoint his nominee…that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed. I disagree with this view."
Who said that? Oh yeah, Barack Obama. When he voted to filibuster Alito.
Well, he's right, isn't he? The GOP's claims that Presidents shouldn't make Supreme Court appointments in the last year of their term, or that "the people" should have a say in an intervening election, are, while not without some antecedents, flimsy and contrived.
If Dems hate those rules, they shouldn't have propagated them.
So, lets talk about Miguel Estrada. Or Priscilla Owen. Or robert Bork. Dems dont really have a leg to stand on here.
Reporter discussion from the other day:
Reporter: And lastly, as long as we’re doing this in a row, how do you respond to Republican criticism that you and other Democrats in your administration who were in the Senate at the time tried to filibuster Judge Alito in 2006?
Obama: [embarrassingly long period of silence and stammering] You know, look. I think what’s fair to say is that how judicial nominations have evolved over time, uh…. is not… historically the fault of any single party. This has become just one more extension of politics. And, there are times when folks are in the Senate and they’re thinking, as I just described, primarily about, is this going to cause me problems in a primary? Is this going to cause me problems with supporters of mine? And so people take strategic decisions. I understand that. Um, but, what is also true is Justice Alito’s on the bench right now.
But he tried to filibuster Alito. So we are left with fact that when he was senator he tried to block the nomination. And didn't succeeed, only because he coudlnt' get enough votes.
Repubs CAN get enough votes. Why is it wrong to block the nomination. We should give Obama credit for FAILING to block the nominee as if it were a moral principle against blocking a nominee?
Tell me why do people keep on saying it has been 80 years since a Justice to the Supreme Court was named and confirmed in an election year?
How many years is it since 1932?
Is it 80, or is it 84?
Ted Cruz again is saying 80 years.
(
There is also 1940, 1956 (when Eisenhower made a recess appointment in October) 1968 - when it was stalled aand then an ethics violation was found on the part of Abe Fortas and he out and out resigned from the court on Erev Yom Kippur, and then they mention anthony Kennedy. although that started in 1987.
To go back to Hpover's nomiation of Benjamin Cardozo to replace Oliver Wendell Holmes, you have to specify a president where it tutned out it was the last year of his term)
Of course in 1932, it was before the Supreme Court got controversial (there was no New Deal legislation yet) and also before the time when they used to confuct exhaustive ethics investigations of Supreme Court nominees (which stated in 1968-69)
I think the Senate should require itself to take only a "limited" time to hold a vote on Obama's nominee. And ask Sonny Bono and Disney to define "limited".
"It’s hard enough to find someone willing to go through the confirmation process when they have a shot at being confirmed, but who the frak would put their life on hold for a year and potentially be ripped to shreds in full view of the public, all for absolutely nothing, for absolutely no chance of confirmation? who would do that?"
Eric Holder? But yeah, I'm of the same mind. Nobody worth their salt is going to accept the nomination.
who the frak would put their life on hold for a year and potentially be ripped to shreds in full view of the public, all for absolutely nothing, for absolutely no chance of confirmation? who would do that?"
People dedicated to politics which is a material percentage of the high level lawyers in the country. Whoever does it gets an opulent retirement funded by speaking engagements at the least and perhaps a high profile job in the new administration. Plus if the person causes a hearing meltdown which credibly hands the election to the Dems they become a Hero to the Party which includes a lifetime exemption from sexual assault and corruption accusations.
Original Mike said...
Nobody worth their salt is going to accept the nomination.
Nobody worth their salt would ever be considered by Obama.
It's hard for him to find but I don't have much trouble. Probably because he is such a proponent of a literal and restrictive reading of the document.
The first rule of constitutional law is that there is a penumbra for that which is subject to adequate supporting leverage. Obama as the current leader of the pro-choice cult should know this better than anyone else. Perhaps he lacks leverage following his liberal departures and progressive excursions from normal, science, peace, etc. in pursuit of his goals.
Amadeus 48 et al: as far as historians leaning left goes, you are being too scholarly and fancy. The real historians in a society are the old men and women in coffee shops. They will be able to give us a fair opinion of Obama in five years. To settle the bet we can pull a state name out of a hat, and then a town. We'll send someone in to the most popular coffee shop to ask seniors "Was Obama a good or bad president?" So simple. So definitive.
If I am correct, they will have had to evolve because they hate him at the moment. And yet, I am confident I am right.
Obama can nominate and the Republicans can show his nominee the same courtesy the Democrats extended to Bork.
Churchill was a winner and hence a historian.
Obama is a whiner and hence not.
Sure sure he's made Leftist history, very successful in terms of trillions of dollars of graft and corruption spent with Bush to foot the bill.
And his GOP congress.
Blogger dbp said...
It may be pretty fucking hard for President (constitutional law professor) Obama
I really wish people would stop saying that. He was NOT a professor of any kind. He was an adjunct. A part time teacher of 1-2 classes per year.
Why do people keep calling him a professor?
I am beginning to think they do it on purpose just to drive me nuts.
John Henry
I too think President Obama is a great president. I think it will take 20-30 years for that view to take general hold but I suspect that it will.
Obama has done more to create interest in liberalism and elect liberal politicians than anyone else. His attacks on the Constitution have brought that document to light with many people reading it now for the first time to find out what it says.
If you were the Koch brothers and you could spend a billion dollars promoting liberalism, how could you be any more successful than President Obama has been?
Note for the folks from Rio Linda: I use liberal synchronously with classical liberal, minarchist or libertarian.
John Henry
Now Obama is having a hissy fit and won't attend Scalia's funeral.
He surely is of the lowest class.
Susan Sup--Well, your chosen group of "historians" has sure bucked up about George W. Bush, so maybe they will about Obama, too. I know in the Soviet Union, the old folks used to fondly remember that strong leader, Stalin. "If only Stalin knew," they would say, "he never would have allowed the Ukraine to starve." Their parents used to say the same thing about the Czar. I think old folks buck up about everyone, and then they die.
So, I won't take your bet, because I reject the idea that I am accountable to any group to attest the validity of my basic observation about Obama: he doesn't like the job, he doesn't understand the job, and he is not very good at the job.
I am glad you think he is great, but I have no idea why you do, other than you just like the fellow--he makes you feel good, and he makes you feel good about yourself because you like him. You should try to get to know a guy who writes for the New York Times named David Brooks. He likes Obama too--particularly his elegant pants crease. Good luck to you. I hope you don't need it.
DNFTT.
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