One should always take political (& other) advice from someone who has the good sense to ignore the Surgeon General's warnings & smoke for forty years.
Nobody stays dead in the funnybooks. And, for its many faults, the CW's power-inclusive universe-building is better than any comic book properties not on Netflix.
So let me get all lawyerly now.
Withholding advice can reasonably be construed as having no opinion on the matter, or not wishing to insert oneself into the discussion.
Withholding consent or withholding denial, as I said above, could be construed as implicit consent, and legally has been. For example, if you fail to actively protect your trademark, and that trademark is used by another company, you can lose your ownership of the trademark. In other words, by failing to deny consent, you implicitly grant consent for the use of that trademark.
So, legally, the president could argue that the Senate's failure to act shows disinterest in the subject and no desire to defend their Constitutional prerogatives, thereby granting implicit consent in his choice.
Honestly I don't know what they're afraid of, not holding hearings or a vote. They can hold a hearing and vote him down and people could howl to the heavens, they would still be within their rights to do so. Not acting at all just doesn't make sense, except as a distraction, getting people to argue about how many angels can dance on the head of a pin.
Just read a large marketing study from 2013 focused on "Millennials With Children." 71% of millennials with children live in suburban or rural areas. Lots of good comments here: I agree and am happy that a lot of "status" symbols may be dead (at least in the near term), but I think critical urban planning prophets are grossly missing the ball by thinking of millennials as strictly educated childless nomads. The public schools thing is probably the horse before any cart, but I'm frankly annoyed by all the urban planning decisions that cater to a demographic that is probably in a finite window time wise.
Catering to childless 20 somethings that have the free time and are "liquid rich" because they have the flexibility to spend an inordinate amount of their income in the experience / entertainment industry is not a sustainable demographic to plan around. Many of the millennial families that live in midtown can only do so because they have generational familial wealth that enables them to do so. That is a fact, whether or not they disguise it by not being otherwise into material consumerism. Real progress would be trying to figure out how to keep middle class young families in the core---and the realization that this includes even double working parents with college degrees who have high incomes, but maybe zero liquid / available familial wealth. Those are just the facts.
Also, would this be the same Adam White who is at the Hoover Institution and writes for neoconservative rag the Weekly Standard?
Hardly an unbiased legal opinion on the subject, I think.
You still watch Arrow? Not I. They ruined that show -- which I once considered the best since Babylon 5 -- when they backed off their original intent of excluding superpowers. And then they killed Black Canary twice, which was unforgivable.
Wow. Sad news. But a great column to go out on. Thanks for all the laughs and for provoking thoughts over the years!
Infinite are the arguments of lawyers to prove what they set out to prove, rather than to prove the facts, even when published in the Harvard Law Review. It's like arguing how many angels can dance on the head of a pin. It begins with the belief in angels.
As a person somewhat familiar with the use and meaning of language, historical lawankery notwithstanding, let's examine the words.
Advice - is something you give or withhold. Withholding advice, by definition, is not advice, it is the avoiding of advising.
Consent - is also something you give or deny. Failure to respond to a request, by definition, is not the same as giving consent, or of withholding consent. It is no action at all.
The Constitution obliges the Congress to advise and consent, and thus, by the common understand of the words today and yesterday, is a demand for action, not inaction. Failure to advise is not a form of advice, and failure to consent OR deny can just as easily be construed as consent as denial.
But even if you argue that failure to give consent is a denial of consent (which it can be, but it is expect that the subject should make some response unless incapacitated, which makes denial of consent implicit), this particular form of failure to give consent is undemocratic and unconstitutional for the simple reason that it does not say that the president shall seek the advice and consent of the Senate majority leader, it says explicitly the Senate. The Senate is a body of people, not a single person, and a single person can't speak for the entire body on any Constitutionally mandated duty. The Senate must give advice and consent and the senate has not been allowed to. At the very least they should have to vote whether or not they will give advice and consent.
@Packrat - You could be right. As I say, Constitutional Law isn't my forte. I just enjoy the history. But the arguments White makes here seem to be where we stand. Honestly, there's way too much passive mechanism in our government to suit my liking to begin with. Sending stuff to committee just to die, failure to ratify, letting things time out, rather than actively voting on them. The whole thing is so... 18th Century... It's exasperating.
"Article concludes that this evidence does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations..."
That's probably true, Oak. But I don't know if it's part of the design of the system as much as it is an oversight of the constitution. I would argue that common sense (not admissible as a legal argument maybe) would dictate that while the Senate is certainly entitled to vote down a President's nominee, to refuse to even consider a nominee at all (especially one as legally qualified as Garland) is shirking the duty to advise and consent.
@Jeff - I understand your argument, but disagree.
Adam White writes in an interesting article for Harvard's 'Journal of Law and Public Policy' that:
"..The meaning of 'advice and consent' is not self‐evident, and the means of its proper application are not obvious. In attempting to ascertain the original meaning of this constitutional provision, we must first look to the debates at the Constitutional Convention and in the subsequent state ratification conventions..."
"..Part I of this Article traces the framing of the Constitution’s provision for Senate advice and consent of judicial appointments from the Constitutional Convention through the ratification debates. Part II explores the history of advice and consent in Massachusetts, outlining the historical relationship between the Governor and the Executive Council, and detailing long‐ ignored evidence contained in the official eighteenth‐century records of the council. Part III focuses on Madison’s alternative to advice and consent —a discretionary Senate veto— and offers a framework for analyzing the textual differences between the veto and advice and consent. Marshalling these findings, this Article concludes that this evidence does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act on the President’s nominations..."
It's a fairly well thought out piece, and I tend to agree with him. The last sentence in the above quote being the pertinent one: "..does not support an assertion that the constitutional provision for advice and consent contains an implicit obligation to act..."
This is the contemporary state of the Constitutional argument as far as I am aware. Of course I'm no Constitutional Law professor. But inasmuch as President Obama actually IS ONE, if there were a Constitutional basis to compel Congress to act, I'm sure the Solicitor General would be litigating that matter right now, in order to get Congress off its collective duff.
The consensus appears to be that this is part of the design of the system, as I stated.
I have read every one of those columns since the late 60s (I kid, you are MY AGE), and this paper would not be where it is today without everything you have done. I shouldn't have to tell you that you will be missed, hell, it's taken 4 people to replace you.
Go enjoy your furry children, sir!
Yep. And, in both style and substance, last night's episode of Arrow was so much better than the debates.
I still have a copy of the Lorena Bobbitt piece you wrote for the July 1- July 7, 1993 issue of the Flyer. Why? Because it was and is one of the funniest pieces I have ever read. You will be missed. We will all soldier on.
Oak, they do have a duty to advise and consent. That is an active role, not a passive role. The fact that they aren't even holding hearings, much less a vote, is shirking their constitutional duties. They can vote against the president's nominations, but they do have to vote. Unfortunately, the Constitution fails to provide a solution for when Congress fails to fulfill this role.
Unlike when the president fails to sign something into law - it becomes law automatically. Because, you know, the executive is an active role as well. I don't think the authors of the Constitution ever imagined a Congress that would not fulfill its most basic legislative roles.
And now Esquire is reporting the Russians hacks go very deep indeed. Think they can't hack the mom-and-pop election operations that go on in this country?
Treaties aren't ratified either, unless the Senate concurs, Pete. The legislature will sometimes fail to ratify certain things they don't like. Just like the President will fail to sign things into law sometimes. This is the way it is supposed to work. I understand that you don't like that. But failing to work with the President to fill judicial vacancies isn't shirking their duty. It's merely one of a number of ways that our Legislative branch of government can exercise checks and balances on the Executive branch. If you look at history, it is indeed apparent that the currently sitting Legislative branch is using this strategy to a much larger degree than it has in other administrations. This piece by the Brookings Institute gives some numbers:
But the power to appoint governmental agents, or not to do so as the case may be, isn't just an Executive function. The Legislative branch can say no. Either actively or passively.
And you're going out in style too. For old times sake:
If Republicans were so concerned about the Constitution, they'd actually do their job. They apparently are confused about their role when it comes to SCOTUS.
"He (the President) shall have the 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."
I hope this is just part of a huge practical joke. Don't go!
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