Sen. Ted Cruz: Can Have Less Than 9 SCOTUS Justices

[libertybele]

If Cruz pushes Republicans to do this, they will lose. He won't succeed (or even do anything more than rabble rouse about it) because even he knows he's wrong.

So now you're reading Cruz's mind??  Interesting.

[Luis Gonzalez]

He didn't. He said there was precedent to have less than 9 Justices right?

That precedent wad established by a law passed by Congress in 1789.

There was a later law which set the required number at nine. The later law displaces the former.

Either number however, is a number set in place by a law passed by Congress. The later one (nine) being the current law on the books.

Where does the Constitution give Congress the right (or power) to ignore laws set in place by an earlier Congress' authority under the Necessary and Proper Clause?

[Weird Tolkienish Figure]

That precedent wad established by a law passed by Congress in 1789.

There was a later law which set the required number at nine. The later law displaces the former.

Either number however, is a number set in place by a law passed by Congress. The later one (nine) being the current law on the books.

Where does the Constitution give Congress the right of power to ignore laws set in place by an earlier Congress' authority under the Necessary and Proper Clause?

So Congress is obligated by the USC to confirm anyone the President appoints as Justice then?


Why have confirmations at all then?

[Luis Gonzalez]

So now you're reading Cruz's mind??  Interesting.

No more or no less than anyone be on this forum is a mind reader.

Having said that, either Cruz understands that he's wrong, or doesn't understand the Constitution as well as he claims that he does.

You pick.

[HonestJohn]

So Congress is obligated by the USC to confirm anyone the President appoints as Justice then?


Why have confirmations at all then?

Why are you conflating a hearing to determine the suitability of the candidate... and an up-or-down vote to establish that as an automatic confirmation?

[Luis Gonzalez]

So Congress is obligated by the USC to confirm anyone the President appoints as Justice then?


Why have confirmations at all then?

They're obligated to advice and consent (or not) with current procedural rules dictating how to arrive at the consent or not decision.

They don't get to make it up as they go.

[Luis Gonzalez]

So Congress is obligated by the USC to confirm anyone the President appoints as Justice then?


Why have confirmations at all then?

Why have confirmations at all if Congress is not obligated to do anything?

The Constitution no more sets a number of Justices than it requires Congress to vote, so one Judge could constitute the Court... right?

[libertybele]

So Congress is obligated by the USC to confirm anyone the President appoints as Justice then?


Why have confirmations at all then?

Exactly. The Constitution does not direct the Senate nor does it state how they should proceed in the decision-making process. No time frame is implied. What is directed by the Constitution is that in order for the president to appoint and seat a justice he can only do so with the consent of the Senate.  Period.  Done.  In other words, the President cannot act alone.  The Senate doesn't have to approve the appointment, nor according to the Constitution does there need to be a specific number of justices.  No amendment to the Constitution has been ratified stating the number of justices.  The Constitution is the highest law of the land. Acts are made/passed and then signed into law, - they must be in compliance with the Constitution, however they are NOT part of the Constitution.

The Judiciary Act of 1789 originally directed there to be 6 justices.  It has been changed over time; it can be changed again!  Again, the numbers of justices is not specified in the Constitution.

http://mentalfloss.com/article/18976/why-are-there-9-supreme-court-justices-and-why-have-supreme-court-all

https://www.britannica.com/topic/Judiciary-Act-of-1789

[Weird Tolkienish Figure]

Why have confirmations at all if Congress is not obligated to do anything?

They're not. Isn't that why you have your frilly, laced panties in a bunch?

[Weird Tolkienish Figure]

Why are you conflating a hearing to determine the suitability of the candidate... and an up-or-down vote to establish that as an automatic confirmation?

Luis seems to be under the impression that Congress is obligated to confirm USSC Justices.

[Fantom]

Why six members?

The Constitution sets no size for the Court, so using your logic one Justice would be sufficient and not at odds with it.

Cooper v. Aaron (1958) - "Federal law... is the Supreme Law of the land."

By the fact that not giving consent requires action, not inaction.

The constitution dictates that the President "shall nominate and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court", so the Senate needs to either give consent or not give consent. Either result requires Senate action, you argue that inaction is perfectly fine.

Actually, using the law you base your argument upon. Six justices are a quorum.

I do wish you would make up your mind if legislated law is "Supreme law" or not. As an aside.. it is "Supreme" as long as it is not at odds with the Constitution. That is why we have a SCOTUS.. S'posedy.. when it is not a corrupt vassal of the State.

All your words ...still do not show where ...in the Constitution... or legislated law(which is conditioned upon being Constitutional).... that the Senate is required to hold a vote on any Presidential nomination.

Oh, be still my beating heart.. you will finally provide such... and win your argument.

Or not....Meh.

P.S. Of course inaction by the Senate is just fine. The Constitution.. does not state that the Senate.."Shall take any action at all...now does it? Hmmmnnnn. Your shrill ..Shall. shill is only  placed upon the President.

[HonestJohn]

Luis seems to be under the impression that Congress is obligated to confirm USSC Justices.

No, he's saying that the Senate is required to hold hearings to determine suitability and then provide the President their advice on whether the judge is fit for the position.  That is called a confirmation hearing.

They can't ignore the situation.

[Weird Tolkienish Figure]

No, he's saying that the Senate is required to hold hearings to determine suitability and then provide the President their advice on whether the judge is fit for the position.  That is called a confirmation hearing.

They can't ignore the situation.

   If the Senate is required to hold hearings then sue Congress? That is for the USSC to decide. I had always thought the Senate made their own rules on how to conduct affairs (within the USC of course).


I don't necessarily disagree about holding hearing, but Luis seems to be talking about confirmations. As if it's the Senate's duty to rubber stand every candidate?


But anyone none of this matter because I believe that all Cruz said was that there was a precedent for not having 9 Justices on the court. If this is what it takes to prevent a bunch of activist judges, so be it.

[Luis Gonzalez]

Actually, using the law you base your argument upon. Six justices are a quorum.

I do wish you would make up your mind if legislated law is "Supreme law" or not. As an aside.. it is "Supreme" as long as it is not at odds with the Constitution. That is why we have a SCOTUS.. S'posedy.. when it is not a corrupt vassal of the State.

All your words ...still do not show where ...in the Constitution... or legislated law(which is conditioned upon being Constitutional).... that the Senate is required to hold a vote on any Presidential nomination.

Oh, be still my beating heart.. you will finally provide such... and win your argument.

Or not....Meh.

P.S. Of course inaction by the Senate is just fine. The Constitution.. does not state that the Senate.."Shall take any action at all...now does it? Hmmmnnnn. Your shrill ..Shall. shill is only  placed upon the President.

The law sets the configuration of the Court at one Chief Justice and eight associates.

The law is Supreme Law and Congress is bound by it. They can change it but they can't ignore it

[Luis Gonzalez]

   If the Senate is required to hold hearings then sue Congress? That is for the USSC to decide. I had always thought the Senate made their own rules on how to conduct affairs (within the USC of course).


I don't necessarily disagree about holding hearing, but Luis seems to be talking about confirmations. As if it's the Senate's duty to rubber stand every candidate?


But anyone none of this matter because I believe that all Cruz said was that there was a precedent for not having 9 Justices on the court. If this is what it takes to prevent a bunch of activist judges, so be it.

Don't put words in my mouth, I've never once said that the Senate must confirm anyone. I've said that there is a current and standing Federal law which sets the number of justices at nine, and that the Senste cannot ignore that law by opting to abide by an earlier law no longer in effect.

I'm also saying that the Constitution binds Congress to take action, so inaction isn't an option and in fact may constitute implied consent.

[Weird Tolkienish Figure]

I'm also saying that the Constitution binds Congress to take action, so inaction isn't an option and in fact may constitute implied consent.

So what action must Congress take then? Explain what you mean by implied consent?

[Synthesist]

There is no implied consent in the USC regarding the Senate’s role in not providing advice and consent. It just does not exist. Implied consent must be proactively asserted and the conditions for the triggering of the implied consent must be defined, along with any necessary consequences, remedies, and/or penalties. No such language is in the USC. In fact, I think that it could be argued that when the Senate Majority Leader “advised” Obama that his lame duck nomination would not even get a confirmation hearing as a new presidential campaign was underway fulfilled the Senate’s “advice” role.

The Honorable Senator Ted Cruz is absolutely correct *if* he stated that there is a precedent for less than 9 seated justices (that’s if you believe a statement based on a reporter’s tweet who works for a left wing “news” magazine!). And the USSC proved Cruz right by its very actions this year. The USSC conducted “business as usual” with only 8 justices seated. They decided which cases to hear, researched facts, case law, and listened to arguments. And then they handed down their decisions. As far as I know, not a single justice raised any issue with the fact there were not 9 justices present. And I have not heard of any claim by legal experts/scholars that the USSC was acting in any illegitimate, much less illegal, much less unconstitutional fashion because there were not 9 justices seated.

[HonestJohn]

So what action must Congress take then? Explain what you mean by implied consent?

I already told you what that was!

[Suppressed]

In fact, I think that it could be argued that when the Senate Majority Leader “advised” Obama that his lame duck nomination would not even get a confirmation hearing as a new presidential campaign was underway fulfilled the Senate’s “advice” role.

:thumbsup2:

[Suppressed]

I already told you what that was!

Nothing says that hearings are required for advice and lack of consent.  It's now on the President to nominate someone who is acceptable to the states' People's representatives.

[HonestJohn]

Nothing says that hearings are required for advice and lack of consent.  It's now on the President to nominate someone who is acceptable to the states' People's representatives.

And those representatives, the Senators, have provided no formal statement of unsuitability.  The Senate, as a whole, has provided nothing.

[libertybele]

No, he's saying that the Senate is required to hold hearings to determine suitability and then provide the President their advice on whether the judge is fit for the position.  That is called a confirmation hearing.

They can't ignore the situation.

Kindly point out where in the Constitution does it give a time frame as to when the Senate is 'obligated' to hold hearings. Again, the Constitution only stipulates that the POTUS is to appoint a justice, but it does not specifically state how many justices must be on the court nor does it state that the Senate has to act in a specified amount of time. Quite the contrary, again, what it specifies is that the POTUS cannot appoint a justice without approval; it does not say that the Senate must act.  A very well designed checks and balance has been put in place yet again by the framers of the Constitution.

[Luis Gonzalez]

Kindly point out where in the Constitution does it give a time frame as to when the Senate is 'obligated' to hold hearings. Again, the Constitution only stipulates that the POTUS is to appoint a justice, but it does not specifically state how many justices must be on the court nor does it state that the Senate has to act in a specified amount of time. Quite the contrary, again, what it specifies is that the POTUS cannot appoint a justice without approval; it does not say that the Senate must act.  A very well designed checks and balance has been put in place yet again by the framers of the Constitution.

.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, [b[/b]shall be the supreme Law of the Land.

So then, the Supreme Law of the land is a set of law made up of the Constitution, and all Federal Laws made by Congress in order to carry forth the powers delegated by the Constitution to them.

This is one of those laws made "in pursuance" of the powers delegate to Congress by the Constitution:

The Judiciary Act of 1869
April 10, 1869.
16 Stat. 44.

CHAP. XXII.— An Act to amend the Judicial System of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum; and for the purposes of this act there shall be appointed an additional associate justice of said court.

Congress, by its own legislation, has set the number of members of the Supreme Court at nine.

What precedent is there which allows Congress to ignore its own statutes and allow you the SCOTUS to stand at less than nine members due to the Congress' decision to do nothing to correct it?

What precedent is there which would allow Congress to refuse to give any consideration to any nominee to fill a vacancy before that nominee is even named?

If Congress whishes to reduce the required number of justices, then Congress needs to pass legislation to that effect.

THAT is how things are done. The precedent which does exist is in my previous sentence. If Cruz thinks that the SCOTUS should be made up of six justices, thenhe should sponsor legislation to that effect.

[Luis Gonzalez]

The Constitution imposes a duty on the President to take care that the laws of the United States be "faithfully executed" (Article II, Section 3, clause 5), so the President has both the power and the Constitutional mandate to make sure that The Judiciary Act of 1869 be followed and that the SCOTUS be made up of the correct number of Justices as mandated by the law.

[Synthesist]

.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, [b[/b]shall be the supreme Law of the Land.

So then, the Supreme Law of the land is a set of law made up of the Constitution, and all Federal Laws made by Congress in order to carry forth the powers delegated by the Constitution to them.

This is one of those laws made "in pursuance" of the powers delegate to Congress by the Constitution:

The Judiciary Act of 1869
April 10, 1869.
16 Stat. 44.

CHAP. XXII.— An Act to amend the Judicial System of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Supreme Court of the United States shall hereafter consist of the Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum; and for the purposes of this act there shall be appointed an additional associate justice of said court.

Congress, by its own legislation, has set the number of members of the Supreme Court at nine.

What precedent is there which allows Congress to ignore its own statutes and allow you the SCOTUS to stand at less than nine members due to the Congress' decision to do nothing to correct it?

What precedent is there which would allow Congress to refuse to give any consideration to any nominee to fill a vacancy before that nominee is even named?

If Congress whishes to reduce the required number of justices, then Congress needs to pass legislation to that effect.

THAT is how things are done. The precedent which does exist is in my previous sentence. If Cruz thinks that the SCOTUS should be made up of six justices, thenhe should sponsor legislation to that effect.

That law is obviously devoid of several absolute mandates and enforcement actions. The only mandate I see is that there must be at least 6 justices seated to constitute a quorum (the law enforcement consequence implied being that less than six justices could not legally hold hearings and/or render binding decisions).

There is no enforceable mandate that all 9 justices must be seated, much less named. There is no enforcement consequence, remedy, and/or penalty specified if there are not 9, or 8, or 7 justices seated or even named.

It could easily be argued that this law only mandates that the USSC can legally operate with a minimum of 6 and maximum of 9 justices. Since there are no law enforcement actions requiring more than 6 and less than 10, the number of justices from 7 to 9 described in this law amount to nothing more than a mere suggestion. For a law to be effective, it should also include enforcement actions if the law is not followed.

I have no doubt that that when this law was being written that the agreed intent was that there should be as many as 9 justices named and seated whenever possible. But it is also obvious to me that this law does not mandate this number, and for good reason (recusal, incapacitation, vacancies unfilled because of unconfirmed nominations, etc.). The lawmakers and POTUS at the time knew that the proper function of the USSC could not be hampered by the possibility that all 9, or even 8, or only 7 justices were not present to hear and decide cases.

So, the Honorable Senator Ted Cruz is correct! Less than 9 justices do not even cause minor legal harm to the proper function of the USSC. Therefore, with all this proffered, I would argue that the supposed tactic of not confirming liberal activist judges nominated by a liberal president, for however long as necessary, would be a perfectly valid political strategy, without any legal or constitutional consequence.