Considering the nomination of a Justice to fill a vacancy on the nation’s highest court is one of the most solemn and consequential tasks performed by the U.S. Senate. The obligation to provide “Advice and Consent” is spelled out in the Constitution itself, as is the President’s obligation to select a nominee. The Constitution does not provide for exceptions to that duty.
Going to Extremes: The Supreme Court and Senate Republicans’ Unprecedented Record of Obstruction of…
Elizabeth Warren
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The reality is that the Senate refused to consent to Obama’s nomination. That is it. Obama is free to nominate another candidate, but the matter is settled with regard to Merrick Garland. Ironically I agree with you regarding the ‘Biden Rule’.

The Biden Rule: The BIG Republican Lie

The Republican Senate’s use of the “Biden Rule” to reject President Obama’s nomination to the Supreme Court is disingenuous and cowardly. When Joe Biden Jr. proposed the rule in 1992 he was being just as disingenuous and cowardly. It is important to realize that conservatives see the death of Supreme Court Justice Anthony Scalia as the biggest threat to Constitution in the 21st Century. In that context, it is the duty of all conservatives to ensure that Scalia’s replacement will not run roughshod over our freedoms. We should proudly acknowledge that our goal is to ensure that Scalia’s seat on the court is anchored by a conservative originalist and textualist. We shouldn’t pretend that we somehow are resting our values in the lap of Joe Biden Junior.

The reality is that Obama has the right to nominate anyone he wants to replace Scalia regardless of the feelings of conservatives. Of course, the Constitution requires the President to secure the approval of the Senate before his nominee can take his seat. Presidents have successfully secured the approval of the Senate 121 times. In these cases, the President sought advice and consent by meeting with the Senate Judiciary Committee to present a list of possible nominees. Liberal Presidents usually offer a slate of liberal judges and conservative Presidents usually offer a slate of conservative judges. The Committee gives the President their recommendations and he makes his decision. In 29 cases Presidents did not heed or seek the advice and consent and their nominations were unsuccessful.

The Constitution was designed to create gridlock and gridlock is good. Scalia famously explained,

“If a bill is about to pass that really comes down hard on some minority [and] they think it’s terribly unfair, it doesn’t take much to throw a monkey wrench into this complex system. Americans should appreciate that; they should learn to love the gridlock. It’s there so the legislation that does get out is good legislation.”

Of course, Joe Biden explained how the Senate can exercise this sort of gridlock in a 2005 speech,

“There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent. President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up or down vote. The Constitution doesn’t say that, it doesn’t even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.”

President Obama in nominating Merrick Garland to the court has decided not seek the advice or consent of the Senate. He knows conservatives can’t willingly accept Garland to the court without compromising their values.The New York Times explained, “his appointment to the seat left by Justice Antonin Scalia would result in a historic change in the court” going on to suggest, “his addition would make the justice at the center of the court more liberal than at any point in nearly 50 years.”

If President Obama feels that the Senate’s decision to block Garland’s nomination would create as Biden explained, “a genuine constitutional crisis”he can simply work with the Senate Judiciary Committee to come up with an acceptable nominee. In the meantime conservatives should stop trying to justify their actions by invoking Joe Biden’s “disingenuous and cowardly” excuses. Tell the truth and trust that people will understand why you’re taking the action (or inaction) you’re taking. Quit lying to us, please.

Oh and for those of you who have no idea why Scalia was so important to America here are a few of his quotes that might help you understand:

“Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

“Never compromise your principles, unless of course your principles are Adolf Hitler’s, in which case you would be well advised to compromise them as much as you can.”
“You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise.”
“A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.”
“I think Thomas Jefferson would have said the more speech, the better. That’s what the First Amendment is all about.”
“If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged.”
“Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
“As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. … It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.”
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