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

[Luis Gonzalez]

That is the Senate's prerogative and the only check on it is whether the Senators can take the political heat from their constituents.  The Constitution permits exactly that.

Current law says that the SCOTUS is to be made up of nine Justices and that Congress selects those Justices via conformation of the President's nominations.

You're saying that abiding or not abiding by existing laws is a prerogative to Congress?

Am I understanding you correctly?

[Fantom]

Current law says that the SCOTUS is to be made up of nine Justices and that Congress selects those Justices via conformation of the President's nominations.

You're saying that abiding or not abiding by existing laws is a prerogative to Congress?

Am I understanding you correctly?

Abiding the Constitution is the duty of all officials.

I do not see anywhere in the Constitution.. you know that little thing called the "Supreme Law of the land" wherein it says the Senate Must take a vote on any SCOTUS nomination.

Maybe you can point that out for me.   

The Honorable Ted Cruz is correct. There is nothing in the Constitution requiring the Senate too hold a vote on a nomination. In fact, there is nothing the law you tout..http://www.fjc.gov/history/home.nsf/page/landmark_10_txt.html establishing that either.

Section 2.

The President

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

[Fantom]

Be nice if unicorns and leprechauns existed too. Might as well add that to your list.

LOL   

[Weird Tolkienish Figure]

So what would be the point of Senate confirmations if the Senate just rubber stamped whatever jackass the President nominated?

[txradioguy]

So what would be the point of Senate confirmations if the Senate just rubber stamped whatever jackass the President nominated?

Well we see the results of that every time we have a Dem House and Senate with a Dem President.

[Luis Gonzalez]

Abiding the Constitution is the duty of all officials.

I do not see anywhere in the Constitution.. you know that little thing called the "Supreme Law of the land" wherein it says the Senate Must take a vote on any SCOTUS nomination.

Maybe you can point that out for me.   

The Honorable Ted Cruz is correct. There is nothing in the Constitution requiring the Senate too hold a vote on a nomination. In fact, there is nothing the law you tout..http://www.fjc.gov/history/home.nsf/page/landmark_10_txt.html establishing that either.

Section 2.

The President

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

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, shall be the supreme Law of the Land

The law which sets in place the number of Justices required to be seated was passed by Congress, acting under the power granted to them by the Constitution via the Necessary and Proper Clause, and as the Supremacy Clause makes clear, it is a part of those laws that, along with the Constitution, make the body known as the Supreme Law of the land.


Your understanding of what the Constitution says is stunted.

[Fantom]

Your understanding of what the Constitution says is stunted.

So sayeth an ignorant man.

You do understand .. do you not.... that the Constitution is put forth first in your quoted part. As such it has primacy as too what is ..well, Constitutional.

Now I believe we can agree here, that the Senate is not required to vote upon any SCOTUS nomination via any reading of the Constitution.

As for the law , a lessor consideration than the Constitution... the law which pertains to this also does not require that the Senate hold a vote.

Maybe you could help my "stunted".. understanding of that law by actually pointing out where it so states such......Hmmmnnnnn

I thought not.

In fact, the relevant law says as few as six SCOTUS justices is a quorum.. that is they can conduct business as usual. Nor does the relevant law preclude fewer than six. It only stipulates that fewer than six cannot hold a quorum.

I repeat... nowhere, does this law.. or the Constitution, mandate that the Senate hold a vote on any nomination.

Your "stunted" understanding notwithstanding good Sir.

[Luis Gonzalez]

So sayeth an ignorant man.

You do understand .. do you not.... that the Constitution is put forth first in your quoted part. As such it has primacy as too what is ..well, Constitutional.

Now I believe we can agree here, that the Senate is not required to vote upon any SCOTUS nomination via any reading of the Constitution.

As for the law , a lessor consideration than the Constitution... the law which pertains to this also does not require that the Senate hold a vote.

Maybe you could help my "stunted".. understanding of that law by actually pointing out where it so states such......Hmmmnnnnn

I thought not.

In fact, the relevant law says as few as six SCOTUS justices is a quorum.. that is they can conduct business as usual. Nor does the relevant law preclude fewer than six. It only stipulates that fewer than six cannot hold a quorum.

I repeat... nowhere, does this law.. or the Constitution, mandate that the Senate hold a vote on any nomination.

Your "stunted" understanding notwithstanding good Sir.

"But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe." - The Federalist #33

You may also want to read Federalist #44.

"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, shall be the supreme Law of the Land."

"This... and ... and... shall be the Supreme Law of the land."

All inclusive, none excluded and none raised above another, shall equally be the Supreme Law of the land.

So Congress, acting under the power granted to them by the Constitution by the Necessary and Proper Clause, created a law (Judiciary Act of 1869) which (as clearly stated by the Supremacy Clause, is part of that which constitutes the Supreme Law of the land) sets in place the size of the SCOTUS.

For Cruz to suggest that the SCOTUS can have less than nine judges, amounts to him saying that the Constitution need not be observed if it doesn't suit a political party's agenda or ideology.

[Fantom]

"But it is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe." - The Federalist #33

You may also want to read Federalist #44.

"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, shall be the supreme Law of the Land."

"This... and ... and... shall be the Supreme Law of the land."

All inclusive, none excluded and none raised above another, shall equally be the Supreme Law of the land.

So Congress, acting under the power granted to them by the Constitution by the Necessary and Proper Clause, created a law (Judiciary Act of 1869) which (as clearly stated by the Supremacy Clause, is part of that which constitutes the Supreme Law of the land) sets in place the size of the SCOTUS.

For Cruz to suggest that the SCOTUS can have less than nine judges, amounts to him saying that the Constitution need not be observed if it doesn't suit a political party's agenda or ideology.

Last first, as is my wont.

Ted says what the law and the Constitution says. First.. the law. It does, in no way say that the Senate must hold a vote on any Presidents nominees. Can we agree on this? Nor does the Constitution require such.....agreed? Now the very law you invoke allows ... by it's own legislation, that the Court can function with as few as six members.

We can set aside for now, whether legislated law or the Constitution is supreme. Pretty sure where SCOTUS lands on this one.... or used to. But I digress.

I am still waiting for you to show me, in the law you pin your argument upon, where the Senate is required to vote on a SCOTUS nominee?

[Suppressed]

Fewer than

[Luis Gonzalez]

Last first, as is my wont.

Ted says what the law and the Constitution says. First.. the law. It does, in no way say that the Senate must hold a vote on any Presidents nominees. Can we agree on this? Nor does the Constitution require such.....agreed? Now the very law you invoke allows ... by it's own legislation, that the Court can function with as few as six members.

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.

We can set aside for now, whether legislated law or the Constitution is supreme. Pretty sure where SCOTUS lands on this one.... or used to. But I digress.

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

I am still waiting for you to show me, in the law you pin your argument upon, where the Senate is required to vote on a SCOTUS nominee?

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.

[Maj. Bill Martin]

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

But that's not a fact.  If you ask for someone's consent, and they don't respond, they haven't given consent.  Inaction, by definition, means that consent was not "given".  The only time the law implies that "silence is consent" is when it is expressly stated as such.  And the Constitution does not say that.

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.

You are interpreting the word "consent" as if they had made a requirement that the Senate "object". 

If the Constitution stated that "the President's nomination shall be considered appointed unless a majority of the Senate objects", such a provision would require Senate action.  But that's not what it says.  Consent requires an affirmative act, and the Senate need not consent if it does not want to.  Legally, a Senate non-vote, and a Senate vote against consent, mean the exact same thing.

Your emphasis on the word "shall" doesn't make sense, because it doesn't say that the Senate "shall" vote.  That second "shall" simply means that if the President nominates a justice, and if the Senate consents, the President "shall appoint" the nominee to the Court.  It's actually a three step process - nomination, confirmation/consent, appointment.

Your application of the "shall" requirement to the Senate action makes no sense, because it would mean that the Senate shall (i.e., "must) "consent", which would be nonsensical.  It would mean that the Senate must confirm all of the President's nominees.

[rodamala]

Well, silence is consent in some aspects of the law...

[SNIP]

So if the Senate doesn't hold hearings, then they consent.

[SNIP]

It's a dangerous game the Senate is playing.

The American people have been slipped a mickey, so it's OK for the Senate to do as it pleases?

No, thanks.

My bleep has been grabbed too many times already.

[Weird Tolkienish Figure]

Giving liberals carte blanche control of the USSC is the ultimate dangerous game IMO.

[Luis Gonzalez]

[SNIP]

[SNIP]

The American people have been slipped a mickey, so it's OK for the Senate to do as it pleases?

No, thanks.

My bleep has been grabbed too many times already.

Only if it suits Bill's agenda.

He would be making an entirely different argument (as would Cruz) if a majority Democratic Senate were refus If to take action on his nominee.

[Maj. Bill Martin]

Only if it suits Bill's agenda.

He would be making an entirely different argument (as would Cruz) if a majority Democratic Senate were refus If to take action on his nominee.

It would then be a "moral" argument based on what he thinks the Framers would have wanted, but there is no legal/constitutional requirement for the Senate to hold a vote, and Cruz wouldn't be fool enough to argue the point.

Look at it this way.  If you really believe the Constitution requires the Senate to hold a vote, then what happens if it doesn't?  What is the remedy that the Court or any other branch could impose?

[Luis Gonzalez]

It's would then be a "moral" argument based on what he thinks the Framers would have wanted, but there is no legal/constitutional requirement for the Senate to hold a vote, and Cruz wouldn't be fool enough to argue the point.

Look at it this way.  If you really believe the Constitution requires the Senate to hold a vote, then what happens if it doesn't?  What is the remedy that the Court or any other branch could impose?

Qui tacet consentire videtur

[Luis Gonzalez]

http://www.yalelawjournal.org/pdf/1129_tk2rqipz.pdf

[Maj. Bill Martin]

Qui tacet consentire videtur

But that's not in the Constitution - it is your own addition with absolutely zero textual support.

In contrast, there is one place in the Constitution where "silence is consent" is expressly adopted.  That's in the veto process.  The President is required to return a bill of which he does not approve to Congress within ten days, along with a statement of the reasons he does not approve.  That's a veto.  And then there is this direct quote:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it,

That is what "silence (or inaction) is consent" actually looks like in the Constitution.  And from the way the Framers designed the veto process, we know that they knew how to adopt the rule of "silence is consent" where they thought it appropriate.  But there is no corresponding constitutional language with respect to Senate consent regarding confirmations.  There is no designated time period in which the Senate must act.  Absent any Constitutional guidance, your new rule would require the complete invention, out of whole cloth, of a time period in which the Senate must act, else "consent" will be implied.  While you might think that is a better or preferable rule, there is simply no Constitutional basis for it, and it actually contradicts the stated requirement that the Senate "consent". 

In short, if the Framers agreed with your interpretation that silence is consent, they would have worded that the advise/consent provision differently, and incorporated a time period in which the Senate must act.  They did not do that.

http://www.yalelawjournal.org/pdf/1129_tk2rqipz.pdf

That's by a Harvard Professor who admits that what he is advocating is "radical" and would upset "longstanding assumptions".  I'd also point out that the recent case on recess appointments would have gone the other way if this was actually the law -- the Senate's failure to vote on a nominee would have meant that the nominee would automatically be confirmed.

[Luis Gonzalez]

But that's not in the Constitution - it is your own addition with absolutely zero textual support.

The thing about that are not in the Constitution outnumber those that are by a number to great to list. The Constitution grants powers and sets responsibilities in place then acknowledges that further refinement and procedures must be established via laws and statutes to make the discharge of those powers possible. Only a simpleton argues that the government of a nation this intricate is limited to only the textual verbiage of the Constitution.

P.S. Obviously you didn't bother even skimming through the Yale Law School link. There is support   

In contrast, there is one place in the Constitution where "silence is consent" is expressly adopted.  That's in the veto process.  The President is required to return a bill of which he does not approve to Congress within ten days, along with a statement of the reasons he does not approve.  That's a veto.  And then there is this direct quote:

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it,

That is what "silence (or inaction) is consent" actually looks like in the Constitution.  And from the way the Framers designed the veto process, we know that they knew how to adopt the rule of "silence is consent" where they thought it appropriate.  But there is no corresponding constitutional language with respect to Senate consent regarding confirmations.  There is no designated time period in which the Senate must act.  Absent any Constitutional guidance, your new rule would require the complete invention, out of whole cloth, of a time period in which the Senate must act, else "consent" will be implied.  While you might think that is a better or preferable rule, there is simply no Constitutional basis for it, and it actually contradicts the stated requirement that the Senate "consent". 

In short, if the Framers agreed with your interpretation that silence is consent, they would have worded that the advise/consent provision differently, and incorporated a time period in which the Senate must act.  They did not do that.

That's by a Harvard Professor who admits that what he is advocating is "radical" and would upset "longstanding assumptions".  I'd also point out that the recent case on recess appointments would have gone the other way if this was actually the law -- the Senate's failure to vote on a nominee would have meant that the nominee would automatically be confirmed.

You're playing a losing game when you opt to acknowledge that Federal laws, along with the Constitution, make up the Supreme Law of the Land.

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.

[Luis Gonzalez]

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Vi Amendment, a la Bill.

Public trial means outdoors.

No set number of jurors, so one or two will do, so long as they confirm that they're impartial.

There's no mention of jury duty or selection, so anyone who happens to be standing around with nothing to do will do.

The accused does have the right to counsel, so long as he of she can pay for it.

[Weird Tolkienish Figure]

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.

Republicans have been doing it for quite a few months now. Polls seem to lean towards them keeping the Senate now.


So if doesn't hurt them now, why would it hurt them in the next 4 years?

[libertybele]

Cruz makes a suggestion and once again and people are getting their knickers all in a bunch.  Meanwhile ... we are 11 days out till the election and the FBI is still investigating Clinton.  Good grief, we should be doing what we can to stop her from being president.  I'm glad that Cruz is trying to delay the Senate from possibly voting and approving one of Bammy's justices.

[Luis Gonzalez]

Cruz makes a suggestion and once again and people are getting their knickers all in a bunch.  Meanwhile ... we are 11 days out till the election and the FBI is still investigating Clinton.  Good grief, we should be doing what we can to stop her from being president.  I'm glad that Cruz is trying to delay the Senate from possibly voting and approving one of Bammy's justices.

Cruz suggested to not confirm anyone that Clinton Newman mnates.

Is it OK if I shower now?

[Weird Tolkienish Figure]

Cruz suggested to not confirm anyone that Clinton Newman mnates.

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