I am trying to imagine the keener academic who would enjoy have their lives blown the fuck up. (Also, would/could the SC tell us if that is "correct"?)
Thanks law professors! We were waiting on you with bated breath to come up with some clever cleverness related to current events.* Unfortunately, it's not for real. I mean, it's a political move that someone could make and see what happens, so in that sense it's "real," but it's not going to and shouldn't happen. For one thing you'd have a genuine question of whether a 5-4 decision was a legitimate or binding one, for another it would provoke a genuine constitutional crisis, for a third given current polling and the state of the Court it's completely unnecessary.
*I really like this line I invented, so I'm going to repeat it: "Legal Academia: Where 'too clever by half' confirms that you're clever"
1) RTFA, I brought up this possibility weeks ago, although without the arguments provided in the link. I would of course seat Garland today, and let the Senate impeach or Roberts wrestle him in chambers.
2) Merrick Garland, for whatever reasons, is Obama's 1st choice. He has been on the shortlist for the entire term. The "most like liberal Prez ever...NOT" was not going to give us a Douglas or Marshall.
Obama is an economic and law-and-order conservative, at best.
"I wonder if this issue in the newspaper I read today could be solved by some counter-intuitive gotcha trick that will impress the checked-out third-year students that are the editors of the most prominent journals in my purportedly scholarly field. PS I have never practiced law."
I have a category of "arguments so dumb only a law professor could make them" and this might be my new favorite example.
Do not let the lawyers determine the limits and borders of politics. Politics is the stuff that happens outside the law; within the law all is negotiation and when delegated, cynicism and corruption.
4: the law review article is from 2013, bro.
Then a newspaper he read in 2013 inspired his counter-intuitive gotcha trick.
Lithwick's Bartleby analogy is strained. I hasten to add that Melville references are generally welcomed.
Roberts and Garland locked in sweaty, singleted embrace. Grunting and the squeak of rubber soles on the mat. The clerks in hushed silence in the antechamber.
After a cursory reading of about a third of the section devoted to whether his understanding can fit with the Constitution, I am prepared to proclaim it not obviously bats as an interpretation, even if plainly unworkable in actual practice.
Is it just me or did 10 come out of nowhere?
10 may be an Unfogged Hall of Fame comment.
Having looked at the law review article, it's not actually so dumb, since it's explicitly an Overton window exercise. Lithwick's suggestion that Garland just show up to work is nuts, of course.
Sheesh! 3.1: "I would of course seat Garland today, and let the Senate impeach or Roberts wrestle him in chambers."
Oh. I don't read bob comments, mostly. Sorry, bob; I like you but you're rarely surprising.
What, we have to be surprising now?
youngun neb is addicted to novelty; the commoner kind of snob in the loveshack of the new.
Should I go to Standpipe's blog if I want to quote "A Man for All Seasons"?
Anyway, I don't think liberals should be promoting the noting that silence implies consent. Seems off-brand.
It seems that the same logic that requires the Senate to act in order to block a nominee could hold that filibustering a nominee is preventing the Senate from acting and thus the person gets seated anyway, so there goes (would go) that.
It says 'advise and consent', not 'advise and decide whether or not to consent'!
18: I mean that if you see his byline you can sort of just skip the comment and not miss much.
At one point looking at the "advise" part and taking it seriously I thought the Senate could make their own appointments bypassing the President.
Somebody needs to explain what "advise" means as a meaningful legal constraint or power
"You don't like the guy. Right, whatever, just fucking vote already, munchkins."
I was gonna say Obama should have nominated Neb, who would then have just gone to work without a confirmation vote. But I think Roberts would beat neb in a wrestling match.
Actually you can miss a lot, which is great!
Does this remind anyone else of the trillion dollar platinum coin that was going to circumvent the whole debt ceiling debacle?
I mean "advise" meaning
"yeah, we can talk about it if you want to but we don't have to and I probably won't listen"
doesn't seem to be something that needs to be in the constitution.
"Advise" as a power, and it's in there with other powers might mean the Senate could make unilateral appointments.
Not that anybody in history has looked at it that way.
Reading through the law article again, and the tortured and liberal reading of "consent" I would for grins posit an opposite case, when for instance a seat on SCOTUS remained vacant for a long time because the President refused or otherwise failed to submit a nomination to an opposition Senate...
...and submit that in that case, recognizing the importance o staffing the gov't and the independence of SCOTUS from the executive branch that the Senate could use its "advice" power and nominate, appoint and confirm a Justice independently of the President.
Or with a Dem Senate in 2017, fuck President Cruz and put Pam Karlan there anyway.
I happen to love Constitutional Crises. Schmitt rules.
"Advice and consent" means the second amendment only applies to state militias.
Always turn it around and remember your party (whichever it is) won't have the presidency forever. What if President Trump (or Cruz) pulled out this argument?
Or to put it more succinctly and slightly paraphrased, "Dozens* of lawyers; insanity! insanity!"
* "Dozens" is from the original; maybe this is one or two idiots.
To take the proposal in the OP seriously, even if the law review article was correct that silence equals consent here,* it only gets you anywhere when you've got enough senators in the opposition who for one reason or another are unwilling to stick their necks out with an affirmative no vote. Which would not be the case if Obama nominated a super lefty. It almost certainly wouldn't be the case with Garland against a background where silence equaled consent, for that matter, which makes the whole thing even more stupid. It's one thing to give Ayotte and Kirk et al. some cover when there's nothing to lose by sitting quiet, another thing if sitting quiet means a Dem-appointed majority on the Supreme Court.
*Which it's not; and even the author eventually gets around to admitting that his arguement doesn't extend to judicial appointments, where the Take Care clause principles he largely relies on don't apply.
I enjoy how Tigre seems to discover his anger about the weirdness of US legal academia anew with every Slate article.
But for reals, why on earth are US law journals edited by students? It seems - politely - insane.
AFAICT everyone discovers their anger about "TOPIC" with every Slate article about "TOPIC".
37.2: (a) tenure in law schools is pretty much a joke, and in order to perpetuate the joke there need to be plenty of opportunities for faculty to publish long dumb articles in law reviews attached to elite law schools and (b) law schools are largely about credentialism, and a senior position on a law review is regarded by many in the profession as a slightly differentiating credential. So everybody wins.
37: Because American law professors are neither lawyers nor academics.
37.2 -- the 100% for real answer is that "editing" journals was originally thought to be useful training for the kind of painstaking clerical gruntwork that was then beginning (in the late 19th C) to be required of Harvard Law graduates by white-shoe NY law firms who were hiring Harvard law graduates. So student-run journals were a sop to the corporate law firm's supremacy over the prestigious law schools, and of course because the prestige schools were doing it everyone else did, too, and the tradition stuck.
I think most even mildly conscientious law professors realize that the law review system is crazy and that they should really have peer reviewed journals (and indeed there are a few). But the system sticks because (a) the law review system still works as an "honor" for law students, and still does provide them with training in horrible clerical gruntwork, and is thus supported by them, their future employers, and the alumni of their schools; (b) it's a system that disproportionately benefits professors at the top schools, who have a system that for a whole bunch of reasons makes it likely that people will publish based on school recognition (or being part of the school). If you teach at Harvard or Yale or Stanford, why wouldn't you want to leverage your influence on the process and massively increase the odds that even your crappiest work of throwaway cleveritude will get picked up in a "prestigious" journal. And since law schools are super hierarchical the tradition marches on even though everyone sane recognizes that the emperor has no clothes.
39 and 40 are even better answers, as well as being less long-winded.
It was near the end when I was in law school, but back then, and obviously before, the software for bluebooking wasn't developed at all, and it really was good training in that part of the thing. Two things convinced me early on that the emperor had no clothes: the editors kept insisting on screwing up a citation in my Note, based on a stupid misunderstanding of the westlaw shepardization; I was assigned to work on an article by a now famous legal scholar, dean of right wingery somewhere, who had 'cite something' in a bunch of places for his clever cleveritudes. Some of which seemed directly contrary to law.
So when it came time to interview for 3d year positions, I said EIC or nothing, and offered parenthood of a then-toddler as experience relevant to dealing with faculty authors. They picked a boring guy, and I had a lot more fun working for a federal judge . . .
I was half a foot taller than Judge Richey, and 35 years younger, but I wouldn't have wanted to wrestle him. He'd have been quick, and clever. And had a real intimidation thing going.
This is an example of constitutional hardball, a concept I like for describing some stuff I read about in the news.
Even if this constitutional interpretation were correct, "no hearings, no consideration" is just a show of strength from the Senate GOP, not a tactical necessity, right? That is, if need be they could switch and more conventionally reject Garland in committee or on the floor. (I don't see that that's any more politically damaging to them either.)
I've wondered why they don't hold a hearing. I guess because they felt a need to go full-asshole in honor of Scalia.
I don't suppose Pat Robertson is saying that Scalia's death is a sign that God doesn't want an end to public sector unions.
I've wondered why they don't hold a hearing.
Pascal's wager. If they win the presidency, they get to pick their own guy. If Clinton wins, they go ahead and approve the most conservative nominee they could reasonably expect out of a Democratic president before she's sworn in.
Also, having the hearing would demonstrate that he's wholly unobjectionable to a vast majority of the country and the Senate for any reason other than partisan politics.
By taking the decision out of their hands, quickly and irrevocably, marginal Senators up for re-election in contested purple states don't have to defend the decision or attack the nominee. For instance, in Illinois, Garland's home state.
51 is probably what they are thinking, but I don't know if it will work. Toomey seems to be hurt by this, but maybe would be hurt worse by having to vote not.
50.last: Right. The absolute no was intended to shut down the issue, make an 8-judge SC the new normal, and avoid squirmy questions for everyone in the caucus. Meetings lead to hearings, and hearings are high profile. And unless Obama nominated Alan Grayson or Ward Churchill, the Republicans would look awful either during or after hearings. During, if they're grilling some obviously qualified woman or minority, after if it's a Merrick Garland who's going to come out smelling like a rose, making it incredibly clear that the Republicans are being ridiculous. Finally, hearings lead to votes, and there's always a risk at that stage that you'll have defections. Probably not enough to overcome a filibuster, but that's awful optics as well.
Just write the "Ward" part really small and say you've got a "reanimated Churchill". Which would technically be true if you could get him to change his facial expression.
47.last: Just to repeat myself, the hope/guess was that the absolute no would lower the salience and get the story over with sooner. If X is the amount of political damage for a No vote, then the hope was that not even having meetings would be 0.9X (or maybe a lot less; as I say in 53, SCOTUS hearings are really high profile events), plus it would happen 2-3 months farther away from the election.
Also, remember that most people expected Obama to nominate a minority, and the optics of a bunch of old, white Republicans asking a bunch of harsh questions of a fresh-faced Latin@ or Asian-American with impeccable credentials are just awful. As it turns out, with Garland, they would look silly rejecting him after always loving him, but it wouldn't really motivate anyone in particular (as a white male, I'm tired of my people being oppressed), but they couldn't know that in advance, and they wanted to pretend it was principle, not politics.
It's like Mitch McConnell missed all those Kim Davis inspired Facebook still-does-her-job memes.
52: And so maybe he demands to be able to vote yes, as long as McConnell can hold the filibuster, and now you've got 7 defections (because that's how many Senators are running in purple states), and the nominee wins a majority of votes, but can't take his place. Awful optics. Oh yeah, and what if Grassley or some other old heads want to make a principled vote (which they really might; they value their personal legacy at least as much as a SCOTUS majority)? Now there's a real risk of losing the whole thing.
The President has said a few times that he expects McConnell to back down. I don't know, obviously, but can imagine that the filing deadlines for various primaries is a factor here. It's an interesting needle to thread.
56, 58 - the contents of one's friends' Facebook walls being the most important political issue of this or any other age.
Okay, all fair enough, but if it were explicitly a choice between "hold hearings and a vote" or "Garland is on the court", I think they would undertake the former wholeheartedly, risk be damned, and with a very good chance of success.
If Clinton wins, they go ahead and approve the most conservative nominee they could reasonably expect out of a Democratic president before she's sworn in.
If Clinton wins and the Republicans still hold the Senate I expect nothing to change. No hearings and no confirmation. These are strange times.
62- That's my thought as well.