Saturday, February 13, 2016

Is a recess appointment to the Court an option? : SCOTUSblog

Is a recess appointment to the Court an option? : SCOTUSblog:



Is a recess appointment to the Court an option?

Analysis
The Constitution not only assigns to the president the task of making nominations to the Supreme Court, setting off Senate review that may or may not result in approval, but it also gives the Chief Executive the opportunity to fill a vacancy on the Court temporarily, bypassing the Senate initially, if a nominee languishes in the Senate without final action.
Within a few hours after the death of Justice Antonin Scalia, it became abundantly clear that, first, President Obama will choose a possible successor and try to get the Senate to go along, and, second, the GOP leadership of the Senate say they will try to block any such nominee from final approval.
If that does result in an impasse, President Obama may ponder the possibility of putting on the Court a new Justice of his choosing, to serve temporarily.  The problem, though, is that less than two years ago, the Supreme Court severely narrowed the flexibility of such temporary appointment power, and strengthened the Senate’s capacity to frustrate such a presidential maneuver.
It is true that one of the Justices regarded as a giant on the Court’s history, William J. Brennan, Jr., actually began his lengthy career with just such a short-term appointment.  The chances of that happening again today seem to have diminished markedly.
The presidential authority at issue in this possible scenario exists, according to Article II, when the Senate has gone into recess and the vacancy a president seeks to fill remains.  Such an appointment requires no action at all by the Senate, but the appointee can only serve until the end of the following Senate session.  The president (if still in office) can then try again during a new Senate session, by making a new nomination, and that must be reviewed by the Senate.
The Supreme Court had never clarified that power until its decision in June 2014 in National Labor Relations Board v. Noel Canning.
The decision was something of a compromise.  The Court expanded the concept of when the Senate would be in recess so that the president could make a temporary appointment, but it also gave the Senate more control over when it does recess and how long the recesses last.  The gesture toward the Senate’s choices was probably the more important result.
Here, specifically, is what the Court decided:
First, on the president’s side, the Court ruled that the recess appointment power applies when the Senate leaves town for a break in the middle of an annual sitting, or a break at the end of each annual session.
Second, also on the president’s side, the decision declared that the president during a recess can fill a vacancy even if the opening occurred well before the recess began.
Third, on the Senate’s side, the ruling made clear that it has to last more than three days, without saying how much more time must pass without the Senate out of town and doing nothing.
Fourth, strongly on the Senate’s side, the decision left it largely up to the Senate to decide when it does take a recess, allowing it to avoid the formality of a recess by taking some legislative action, however minor or inconsequential and however few senators actually take part in some action.
Suppose President Obama goes ahead with a nomination to the open seat on the Court, and suppose that the Republican-controlled Senate chooses not to allow that nominee.  The GOP has enough seats in the Senate to control that scenario.
Suppose, then, that the Senate goes into recess to allow its members who are running for reelection to spend some more time campaigning back home.
Could President Obama make a nominee during that recess?  Only if the Senate is taking a recess lasting longer than three days, and does not come in from time to time during that recess to take some minimal legislative action.  Both of those circumstances would be entirely within the Senate’s authority.
In that circumstance, a recess appointment to the Court would not be within the terms of the Constitution, as spelled out in Article II.
The same situation would likely apply when this year’s Senate session comes to an end, and the senators take a recess before the next Congress assembles.
The bottom line is that, if President Obama is to successfully name a new Supreme Court Justice, he will have to run the gauntlet of the Republican-controlled Senate, and prevail there.  The only real chance of that: if he picks a nominee so universally admired that it would be too embarrassing for the Senate not to respond.
  Big Education Ape: What happens to this Term’s close cases? : SCOTUSblog http://bit.ly/1oetRpa

Big Education Ape: Evening round-up: Death of Justice Antonin Scalia : SCOTUSblog http://bit.ly/1SNKZyQ

Big Education Ape: Judiciary panel chair: Wait on Court until after election : SCOTUSblog http://bit.ly/1XqInpx

Big Education Ape: Supreme Court vacancies in presidential election years : SCOTUSblog http://bit.ly/243iXTA

Posted in AnalysisFeatured
Recommended Citation: Lyle Denniston, Is a recess appointment to the Court an option?,SCOTUSblog (Feb. 14, 2016, 12:24 AM), http://www.scotusblog.com/2016/02/is-a-recess-appointment-to-the-court-an-option/

Supreme Court vacancies in presidential election years : SCOTUSblog

Supreme Court vacancies in presidential election years : SCOTUSblog:



Supreme Court vacancies in presidential election years

In the wake of the death of Justice Antonin Scalia, questions have arisen about whether there is a standard practice of not nominating and confirming Supreme Court Justices during a presidential election year.  The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending nomination.  In that period, there were several nominations and confirmations of Justices during presidential election years.    
The first nomination during an election year in the twentieth century came on March 13, 1912, when  President William Taft (a Republican) nominated Mahlon Pitney to succeed John Marshall Harlan, who died on October 14, 1911.  The Republican-controlled Senate confirmed Pitney on March 18, 1912, by a vote of fifty to twenty-six.
President Woodrow Wilson (a Democrat) made two nominations during 1916.  On January 28, 1916, Wilson nominated Louis Brandeis to replace Joseph Lamar Rucker, who died on January 2, 1916; the Democratic-controlled Senate confirmed Brandeis on June 1, 1916, by a vote of forty-seven to twenty-two.  Charles Evans Hughes resigned from the Court on June 10, 1916 to run (unsuccessfully) for president as a Republican.  On July 14, 1916, Wilson nominated John Clarke to replace him; Clark was confirmed unanimously ten days later.
On February 15, 1932, President Herbert Hoover (a Republican) nominated Benjamin Cardozo to succeed Oliver Wendell Holmes, who retired on January 12, 1932.  A Republican-controlled Senate confirmed Cardozo by a unanimous voice vote on February 24, 1932.
On January 4, 1940, President Franklin Roosevelt (a Democrat) nominated Frank Murphy to replace Pierce Butler, who died on November 16, 1939; Murphy was confirmed by a heavily Democratic Senate on January 16, 1940, by a voice vote.
On November 30, 1987, President Ronald Reagan (a Republican) nominated Justice Anthony Kennedy to fill the vacancy created by the retirement of Louis Powell.  A Democratic-controlled Senate confirmed Kennedy (who followed Robert Bork and Douglas Ginsburg as nominees for that slot) on February 3, 1988, by a vote of ninety-seven to zero.
In two instances in the twentieth century, presidents were not able to nominate and confirm a successor during an election year.  But neither reflects a practice of leaving a seat open on the Supreme Court until after the election.
On September 7, 1956, Sherman Minton announced his intent to retire in a letter to President Dwight D. Eisenhower, and he served until October 15, 1956.  With the Senate already adjourned, Eisenhower made a recess appointment of William J. Brennan to the Court shortly thereafter; Brennan was formally nominated to the Court and confirmed in 1957.  The fact that Eisenhower put Brennan on the Court is inconsistent with any tradition of leaving a seat vacant.
And in 1968, President Lyndon B. Johnson nominated Abe Fortas, who was already sitting as an Associate Justice, to succeed Chief Justice Earl Warren, but Republicans filibustered the Fortas nomination – principally in reaction to the Warren Court’s liberalism and ethical questions about Fortas, although objections were certainly also made that it was inappropriate to fill the seat in an election year.  That filibuster prompted Homer Thornberry, whom Johnson nominated to succeed Fortas as an Associate Justice, to withdraw his name from consideration in October 1968, because there was no vacancy to fill. Moreover, the failure to confirm Fortas as the Chief Justice did not leave the Court short a Justice, because Chief Justice Earl Warren remained on the bench.
Tom Goldstein also contributed to this post.
Posted in Everything Else
Recommended Citation: Amy Howe, Supreme Court vacancies in presidential election years,SCOTUSblog (Feb. 13, 2016, 11:55 PM), http://www.scotusblog.com/2016/02/supreme-court-vacancies-in-presidential-election-years/

Coalition for Action – BATS

Coalition for Action – BATS:


Coalition for Action


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July 8th – 10th
BATs will be descending upon DC once again this summer! This time we will be joined by SOSUOONPE,NCEUANEA BAT CaucusOpt Out Florida Network, and CELT!
We are working with these organizations to form a coalition that will grow with like-minded people to speak and march in solidarity in Washington DC on July 8-10th.
This coalition is working hard to join together a broad group of diverse people to make the statement to our government and to the citizens of our country that “This is what democracy looks like!”
We envision actions and festivities for children and adults, which foster awareness and to celebrate democracy by living it.
Details are developing for this event so please sign up to receive updates and support us!

We have a burgeoning coalition of grassroots groups, union organizations, and activists who will rally and march in support of education and social justice. The Coalition is growing, and we envision a mass gathering with bold actions and expressions of resistance for children and adults, which foster awareness and camaraderie in the movement to save our schools. Join us inWashington D.C. on July 8-10th to celebrate democracy by living it. The general schedule for the event is:
  • July 8th: Rally & March (location will be announced soon)
  • July 9th: National & International Summit with family and kid-friendly events
  • July 10th: Coalition Congress – member organizations meet to plan next steps for the movement
An action this big requires much collaboration and support, and the Coalition has many involvement opportunities for individuals and organizations alike. Consider helping in the following ways:
  1. Endorse the principles and the 2016 event
  2. Provide active publicity about the 2016 event to your organizations and listserves
  3. Organize in your area and assist people in attending the event
  4. Provide financial support for the 2016 event and/or scholarships to deserving attendees
  5. Collaborate and actively engage in the planning of the 2016 event by joining the Coalition for Action Steering Committee or one of its planning sub-committees. For more information on how to help and participate in the Coalition event, contact Bob George at (708) 692-5818.
This is an election year, and surely there can be no better time to show our government and our fellow citizens, “This is what democracy looks like!” We look forward to marching with you this summer in D.C.!
In solidarity,
The SOS Coalition for Action

2016 Medley #4 | Live Long and Prosper

2016 Medley #4 | Live Long and Prosper:

Politics, Charters, “Failing” Schools, Status Quo, Literacy “Experts”

POLITICS
Here’s a link to a chart explaining current candidates’ education policies. The column on vouchers says it all. Every Republican listed in the chart (except for Donald Trump) either “Supports” or “Strongly Supports” vouchers. Each of the Democrats “Opposes” vouchers. Trump supports vouchers as well (see here andhere), but apparently Parents Across America missed it.
Former Secretary of State, Hillary Clinton, is the only one who is specifically against using tests for teacher evaluations.
So, no surprises…
PAA does not endorse any candidate, but we are committed to educating parents and the general public about where the candidates and parties stand on education issues. The information in the following table was retrieved on Feb. 10. 2016 from www.ontheissues.org/education andwww.ballotpedia.org. We have focused on the two remaining Democratic candidates and the top 6 Republican nominees based on [February 10] national polling.
Louie Gohmert (R: TX) has got to be one of the stupidest members in the US House of Representatives. Why is Bernie Sanders doing so well? Simple, thinks Gohmert, because…Hippies!
According to Gohmert, “socialism has never worked”…except Bernie Sanders is aDemocratic Socialist and that has worked is working in lots of places…just ask the folks in Denmark (happiest country in the world), France (best health care system in the world), Canada (wealthiest middle class in the world), Norway (world’s highest standard of living) and elsewhere.
…we let some of the hippies from the ‘60s who created such chaos then start teaching the teachers,” Gohmert said, “and teaching them how great socialism is and just rewriting history and keeping them from realizing socialism has never worked, it will never work in this world, in this life, because if you’re going to pay everybody the same thing then they’re going to quit working.”
The Dirtiest Election in History: The campaign of 1826
You think today’s election campaign is dirty? You think the fireworks at the Republican Debates are offensive? Historians agree that today’s campaign is nothing like the Presidential campaign of 1826.
According to the John Quincy Adams campaign, Andrew Jackson married a bigamist which meant his wife was a whore.
According to the Andrew Jackson campaign, John Quincy Adams was a pimp for 2016 Medley #4 | Live Long and Prosper:

Judiciary panel chair: Wait on Court until after election : SCOTUSblog

Judiciary panel chair: Wait on Court until after election : SCOTUSblog:

Judiciary panel chair: Wait on Court until after election

Charles Grassley, the Iowa Republican who chairs the Senate Judiciary Committee, said Saturday night that the Senate should not act on any new Supreme Court Justice’s nomination until after the November presidential election.  Although the Republican leadership of the Senate presumably could overrule Grassley on the point, there will be heavy political pressure on those leaders to leave the nomination to President Obama’s successor.
Here is the key part of the chairman’s announcement: “The fact of the matter is that it’s been standard practice over the last eighty years to not confirm Supreme Court nominees during a presidential election year.  Given the huge divide in the country, and the fact that this President, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”
It seems almost a certainty that there will be a fight in the Senate on how or whether to proceed.   The Democratic leader, Senator Harry Reid of Nevada, issued a statement with this argument;
“The President can and should send the Senate a nominee right away.  With so many important issues pending before the Supreme Court. the Senate has a responsibility to fill vacancies as soon as possible.  It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat.  Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”
The dueling statements by two key Senate figures immediately reflected the coming battle over the succession question among activist groups on both ends of the political spectrum.   These are organizations that, over the years, have gained major influence on the entire issue of Senate review of judicial nominations. Members of the Judiciary Committee themselves have come to rely heavily on the lobbying efforts of these outside groups.
In early statements after the news of Justice Scalia’s death had crossed the nation’s capital, leaders of conservative activist groups argued that the Scalia seat should be kept open until a new president is in the White House.   Leaders of liberal and progressive groups argued just as strongly that the president should move ahead and work to place a new member on the Court, and do so promptly.
Posted in Featured
Recommended Citation: Lyle Denniston, Judiciary panel chair: Wait on Court until after electionSCOTUSblog (Feb. 13, 2016, 7:38 PM), http://www.scotusblog.com/2016/02/judiciary-panel-chair-wait-on-court-until-after-election/

Special Nite Cap: Catch Up on Today's Post 2/13/16



CORPORATE ED REFORM




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