Advice and Consent

From Article II, Section 2 of the U.S. Constitution:

He [the President] 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, 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.

President Donald Trump’s nomination of eminently qualified Neil Gorsuch to the Supreme Court has touched off predictable reactions from Democrats. Many of them are very bitter over the GOP-controlled Senate’s refusal to consider President Obama’s nomination of Merrick Garland to fill the vacancy left by the passing of the great Antonin Scalia. Given the GOP’s refusal to even hold a hearing on Garland’s behalf, Democrats are in no mood to cooperate with Trump’s nominee. Senate Minority Leader Chuck Schumer recently insisted that Democrats will demand a 60-vote minimum to confirm Gorsuch to the High Court—implying, of course, that they will, if necessary, filibuster the nominee.

Democrats argue that the Constitution obligates the Senate to vote for or against a presidential nominee. They insist that a refusal to even consider a nomination is an abdication of their constitutional responsibilities. They argue that the term advice and consent demands action, not inaction. One cannot give advice and one cannot consent without action. And action, in a senatorial sense, includes hearings, debate, and an up or down vote. Inaction, therefore, is a dereliction of duty.

Opinions are varied on the meaning of advice and consent. That is to be expected if we ignore the original understanding of said term. In early America, the meaning was not as questioned as it is today. People argue back and forth over modern dictionary definitions and infuse their arguments with what they feel is the proper role of the Senate. The chaos is predictable without objective principles to guide us in understanding the Constitution.

Before directly analyzing Article II, Section 2, it is helpful to briefly explain why textualism and originalism are indispensable guideposts for constitutional interpretation. Law can be extremely complicated, but the following example should be easy to understand. It is an illustration I have often used for the benefit of my students. Imagine a 1790 law which states:

No gay activities shall be permitted during state funerals.

Also imagine a group of people who object to seeing males holding hands and females kissing (as heterosexual couples often do when grieving) during state funerals. They adopt the “evolving standards of decency” and “living law” approach to law and call for the arrest of homosexuals who publicly display their affection during state funerals. How would a textualist judge decide such a case if homosexuals are fined or arrested for engaging in “gay” activity? Quite easily, of course. The word gay in 1790 meant joyful, happy, carefree. Thus, textualism looks at the words as they were defined when the law was enacted, and originalism looks at how they were understood at the time of adoption. If the evidence clearly shows that the public understood such a law to prohibit celebratory behavior during state funerals, any conviction of homosexuals based on said law would be overturned. To infuse the words of the law with a modern definition (thus, changing the definition) amends the law from the bench (where the term legislating from the bench comes from) and arrogates a power reserved by the People through their elected representatives. One can readily see how textualism is a safeguard against liberal and conservative activisim—whether in the legislature or on the bench. Any philosophy which grants a judge latitude to replace the People’s will with h/er own undermines the rule of law and should never be accepted by a democratic republic.

During the Constitutional Convention of 1787, various modes of appointment were discussed and debated. On July 18, Madison informs us of a proposal by Nathaniel Gorham of Massachusetts:

Mr. Ghorum, wd. prefer an appointment by the 2d. branch to an appointmt. by the whole Legislature; but he thought even that branch too numerous, and too little personally responsible, to ensure a good choice. He suggested that the Judges be appointed by the Execuve. with the advice & consent of the 2d. branch, in the mode prescribed by the constitution of Masts. This mode had been long practised in that country, & was found to answer perfectly well.

Note that Gorham suggested the advice and consent model of the Massachusetts constitution. Following more debate, votes were held on two proposals. The first vote defeated the proposal to vest judicial appointments solely in the Executive. The second proposal (Gorham’s) was tied. Upon these results, more discussion ensued, and Madison then proposed an Executive appointment which could be defeated by 2/3 of the Senate. In other words, a presidential appointment would stand unless the Senate voted by a 2/3 majority to reject the same. Concerns were raised that this gave too much power to the president and demanded too much of the Senate. Madison then agreed to drop the 2/3 proposal to a simple majority. Madison’s proposal thus required a down vote by the Senate to reject a nomination. Madison’s proposal meant, of course, that Senate inaction would result in the nominee assuming the position in question. A public, negative vote would have been the only manner in which the Senate could reject a presidential nominee. This, too, was defeated by the convention. It cannot be overstressed that Madison’s requirement of a Senate vote (thus limiting the Senate’s power to a discretionary veto) was defeated by the convention.

Finally, the convention initially agreed to accept judicial appointments by the Senate, but then reconsidered Gorham’s proposal. After some debate, Executive nomination with the Senate’s advice and consent was approved. The delegates accepted the final version on September 17.

Recall that Gorham’s proposal relied upon the Massachusetts model which “had been long practised in the country, & was found to answer perfectly well.” An examination of Massachusetts’ executive appointments shows that while the vast majority of appointments were approved by their mandated advising Council, rejections were never formally announced. In other words, when they rejected a nominee, they did nothing. The Massachusetts constitution required the advice and consent of the Council for judicial appointment, officers, and treasury expenditures. While affirmations were publicly recorded, rejections were not. As a result of investigating the records of Massachusetts, Adam White concluded:

The Massachusetts process of council advice and consent for executive nominations served as Nathaniel Gorham’s model in proposing an advice and consent model of judicial appointment in the Federal Constitutional Convention. As seen in the colonial history of the council, and in the Essex controversy, the people of Massachusetts deemed a strong Council essential to the effective restraint of the Governor; it was a core feature of the revised Massachusetts Constitution of 1780. It was originally envisioned as a majoritarian body, per the text of its constitutional mandates. But as seen in the investigation of its records, its advice appears to have been limited to formal pronouncements on matters of spending and appointment, not including any general advice it offered the Governor in their near‐daily meetings. It appears that its formal advice and “consent” did not include rejections of nomination or of other gubernatorial requests; rather, it was limited to the affirmative, explicit approval of matters before it. The Massachusetts Council never evidenced obedience to any obligation to actively and publicly reject those nominees who failed to receive its consent, at least not in any way that comported with the explicit mandate of the then‐new state constitution, in the brief interim between ratification of the state constitution of 1780 and the Federal Constitutional Convention of 1787. This stands as strong evidence against the suggestion that the Federal Constitution’s advice and consent provision includes an implicit obligation that the Senate actively and publicly reject those nominations that fail to secure the Senate’s consent.

Given that the convention rejected the proposal to require a formal vote by the Senate in order to defeat a presidential nominee, and given that the advice and consent model proposed by Gorham was based on the model used by Massachusetts, the assertion that the Senate is obligated to issue and up or down vote on judicial nominations does not conform to the original understanding of that term. Indeed, said term was similarly used in England:

This interpretation of advice and consent also reflects the traditional use of the phrase in England, which, long before 1787, customarily noted that the King’s law was enacted “by and with the advice and consent of the lords spiritual and temporal and commons in parliament assembled” (or a functionally equivalent reference to “advice and consent”) in pronouncements of law that received the concurrence of Parliament.  “Advice and consent” did not refer to parliamentary rejection of the King’s proposed course of action, but only its endorsement of that proposal. In this respect, “advice” was not a synonym for “opinion,” but rather, it was a synonym for “approval.” [ibid]

White’s entire paper is recommended reading for a fuller description of the history behind the adoption of advice and consent into our Constitution.

In reply to the Democrats’ insistence that advice and consent obligates action (yea or nay), consider a requirement from the Boy Scouts that parental consent is required for Johnny Smith to join his troop on the next campout. It should be manifest that if Johnny’s parents do nothing, the Scouts will have no choice but to prohibit Johnny from participating. In other words, their express consent (normally in writing) is required for Johnny to participate. The refusal of the parents to give written affirmation is not a dereliction of their duty as parents; it is their right. The power of nomination rests in the president. The power of appointment rests in the Senate. It can only appoint by an affirmative vote. If it does nothing, the nominee cannot serve.

In sum, the Senate’s role in the confirmation process is not limited to a discretionary veto. Recall that a bill becomes law unless the president vetoes it. Such an approach for the Senate was explicitly rejected by the Constitutional Convention. Given the Massachusetts model’s use of the term advice and consent,  and given England’s precedent, the Senate is not obligated to act on a president’s nominee. It may vote to approve, vote to reject, or do nothing. This approach, of course, conforms with originalism. It excises the subjective wrangling over what that term means and it eliminates an appeal to how we feel the Senate should act. Consequently, complaints by Democrats that the GOP was derelict in it’s constitutional duties is without warrant. And their reliance on that false charge in opposing Gorsuch is manifestly ignorant or disingenuous.

Weekend Caption Contest™ Winners February 3, 2017
Now, it is Republicans who are promoting a falsehood.
  • Par4Course

    Your methodology and conclusions are those of a legal scholar. Even if Chuck Schumer and his minions took the time to read your article or the documents on which it relies, it would in no way diminish their accusation that President Obama’s nomination to the Supreme Court was “stolen” by the GOP. If Democrats gave a whit about judicial scholarship, they would be on board with Judge Neil Gorsuch’s nomination to SCOTUS, as the entire Senate was when he was nominated for the Court of Appeals. They, like the rioters in Berkeley, care more for slogans than for knowledge.

    • jim_m

      It is entirely because the dems believe that the court is an unelected legislative body that they are upset. If the court was only about dispassionately ruling on the law there would be no problem, but the dems see the court as a tool to force their agenda on a public who would never countenance a Congress that would pass such laws.

  • pennywit

    Did the Framers envision a situation in which the Senate would deliberately fail to act on a president’s nomination? Federalist No. 76 does not seem to envision that sort of scenario. Rather, it seems to envision a Senate that might occasionally reject a president’s nominees, but would usually not do so because it would recognize the president would simply appoint another person they don’t like.

    Then again, the Framers also envisioned a Senate that answered to state legislatures, rather than directly to voters …

    • jim_m

      Non responsive.

      The argument had been put out by the democrats that it would be irresponsible and unnecessarily politicize the court by attempting to fill a vacancy during an election. They supported that argument when it was feared the Bush 41 would get to appoint someone.

      Now that the shoe is on the other foot they’re screaming that this is wrong. Well screw you. STFU and live by your own rules. If you don’t like them then perhaps it is incumbent upon you to think through your beliefs and what they really mean before you go trying to force them on other people.

      • Retired military

        Alinsky 101 make them live by their own rules.

    • Answered in his third blockquote.

    • Retired military

      I disagree with your 1st paragraph. The framers did an amazing job laying out rules which have stood the test of time. Just because you cant find it written down doesnt mean that it wasnt considered or discussed. They made democracy messy and tjhey put roadblocks in place. That is why the branches of govt are equal and not one having to kowtow to another. The Senate was left to make up its own rules. If the founders didnt want it that way they would have said so in writing They had no problems doing so with other things.

    • Scalia

      Did the Framers envision a situation in which the Senate would deliberately fail to act on a president’s nomination?

      If the Founders understood advice and consent to be an explicit affirmation, then inaction or an explicit nay would defeat a nomination. The Convention’s rejection of a discretionary veto is further evidence of the same. Nothing in Hamilton’s 66 or 76 contradicts that. Indeed, in Federalist 66, he writes:

      It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

      Hamilton does not here explicate how a nomination may be defeated, but given the background of adoption, I think it is clear that rejection can be accomplished two ways: By vote or inaction.

      • pennywit

        Which brings another thought to mind; if the Senate was clearly not going to accept Merrick Garland (through inaction, if nothing else), then President Obama should have withdrawn Garland’s nomination and put forward another candidate.

        • Yes, he should have. He was never very consistent in the performance of his duties.

        • Scalia

          Yes, I see your point, but recall that McConnell stated that no nominee would be considered until after the election. Trotting a stream of nominees in front of the press with their families would have been pointless and would have amounted to nothing but a dog and pony show.

          • pennywit

            nothing but a dog and pony show.

            Also known as US politics. But somebody fired the guy with a broom.

  • Retired military

    Dems believe anything that advances their cause is not only right and appropriate but just. They also believe that anything that negatively affects their cause is wrong.

    • jim_m

      Or as Alinsky put it “The only unethical use of a means is the non use of a means.” It is literally any means to an end and they will excuse any and all excesses in pursuit of their agenda.

      • They feel unbound by bourgeois “factual verifiable” truth, only to revolutionary truth which advances their agenda.

  • Brucehenry

    I am not a legal scholar, or much of a scholar in any subject. I’d like to respectfully ask both pennywit and Scalia a couple of questions and please pardon me if they seem ignorant. I really only know what I’ve read on the internet about this subject.

    1. Isn’t it (or is it) a problem that a strict adherence to originalism and textualism requires us to ignore or discount the accumulated wisdom and experience of 240 years?

    2. Isn’t it (or is it) true that “originalism” and “textualism” are misnomers, both related philosophies having originated in the 1980s? If not, where did these schools of thought come from?

    PS I personally think Gorsuch should be confirmed barring the unlikely possibility that something disqualifying may pop up in his confirmation hearings. He seems eminently qualified from what I’ve heard, even though he is likely to rule against “my side” in certain cases.

    • Retired military

      Bruce.

      My take on number 1.
      There is a method to change the constitution (via admendment). Accumulated wisdom of 240 years if it is so compelling should be able to pass the admendemnt process.
      One of the constants in the universe is that we continue to repeat the mistakes of the past so maybe that wisdom that we have accumulated isnt so wise after all.

      • And the legislators choose the language of the laws they write, the obligation for limiting or removing ambiguity in modern context is theirs.

    • jim_m

      TO answer #1. No it is not. The purpose of the court isn’t to create law or reinterpret law by pouring new meaning into the text as we see fit. If that becomes the case then there is no need for a Congress.

      The correct way of putting in the accumulated wisdom of 240 years is to amend the Constitution accordingly. The fact that the left lacks the ability to formulate a convincing argument to incorporate any of their ideas suggests that those ideas are every bit as bankrupt as the right says they are.

      The reality is that the left is pissed off because it sees the court as a way of circumventing the constitution by turning it into an unelected legislative body. If you would use the court as it is intended instead of trying to impose your fascist agenda by non-democratic means, you might not have such a problem with this appointment.

    • jim_m

      #2. Is quite possibly the dumbest thing you have posted. The philosophies are that we should try to understand the original intent. For obvious reasons there was no need to have such a judicial philosophy in the late 18th century when the people who wrote the constitution were still alive.

      Your concept that a philosophy is invalid because it is relatively new is idiotic on its face. I take it then that you are telling leftists that their ideas about communism are bullshit because Marx only came along a century ago and what good are his philosophies when the world has existed for millennia?

      I expect a lot of stupid stuff from Paul, but even he is smart enough to not write something as immensely dim as what you did in your point #2.

      • Brucehenry

        There is a reason why I asked specifically for Scalia and/or pennywit to answer the questions I posed. Your unhinged over-the-top rants and insults notwithstanding, Scalia has given a coherent answer to at least one of them below.

        • jim_m

          And his response on #2 was more patient and polite than it deserved. It truly is a question borne out of ignorance and is laughably stupid in its premise. If you want to avoid ridicule don’t be stupid.

          • Brucehenry

            I think I approached this with humility and prefaced my questions with a confession of ignorance on this subject. If you want to be an asshole about it that’s on you. Certainly nothing new.

          • jim_m

            You burned your bridge here long ago.

          • Brucehenry

            Did I? Because Scalia, a moderator here who has often expressed exasperation with me and an intense personal dislike, has managed to summon up the good manners and civility to answer my question in a gracious and non-condescending manner. RM routinely engages with me politely. Other commenters with whom I disagree, including jwb and Vagabond, will at least initially do a back and forth with me on a reasonably civil if adversarial basis. (Sometimes one or the other of us will lose our tempers and say something we probably wouldn’t, if our mamas were reading us.)

            No, it’s really only you, Ol’ No-Home-Trainin’ Jim, and your pet reptile Rodney, who refuse to be reasonable and polite.

          • jim_m

            es, with me. How did you read my comment to be referring to Scalia? You really are slow witted today.

          • Brucehenry

            You said “here” which I assumed meant Wizbang. And it did, you’re just pretending you meant something else now. Yes you are.

          • jim_m

            I see. Now you are presuming to know what I mean better than I do myself.

            You are a clown. I always was speaking for myself. You are too small of a person to say that you were wrong. Fuck off.

          • Brucehenry

            No we both know what you meant. You’re just lying about it.

          • jim_m

            Proof? I posted immediately that you were wrong and I meant it. Once upon a time you were man enough to admit when you were wrong. You no longer have any moral compass and you lie like a rug every time you come here and you lack the moral spine to admit when you have erred. That is one thing where we differ. I still retain the ability to admit when I am wrong. You do not. You are a small, uneducated and bitter little man.

          • Brucehenry

            OK if you say so wink wink

          • More of an ass-clown.

          • I told you that new rules were going to suck for you.

          • Scalia is the newest author here, and thus has not (yet) formed the sheer and utter contempt for you most of the rest of us have.

            Note for instance the lack of vituperation and ad-hominem in the comment sections of the articles I have submitted here over the last year. Your absence has had the desired and intended effect.

          • jim_m

            Amazing what happens when you don’t have a dishonest leftist trolling your comment section.

          • Less amazing than utterly predictable.

          • Brucehenry

            Nobody gets angry in an echo chamber, dumbass.

          • Your absence makes any space better for it.

          • Ha, ha!

    • Scalia

      Although Aristotle systematized the principles of logic, he did not invent “logic.” Human thought is not possible without exercising the core principles of human thought: Identity, contradiction, and excluded middle. And these were, of course, in play when humans were created.

      Similarly, while not originally called originalism, its principles were embraced long before Bork or Scalia. As Chief Justice Marshall wrote in Ogden v. Saunders:

      To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance nor extended to objects not comprehended in them, nor contemplated by its framers is to repeat what has been already said more at large and is all that can be necessary.

      That eloquently summarizes originalism and reflects the common method of interpreting law. So, the fact that its approach has been systematized and refined by modern thinkers in no manner implies that it is a novel approach.

      • Brucehenry

        Thank you, that makes sense and now I know some stuff I didn’t know before.

      • Brucehenry

        BTW jsyk when I get email notification that someone has replied to me, and after reading click on “reply to,” instead of being sent here like always I get a page that warns of a “phishing issue ahead.”

        Do you think that’s my anti-virus thing acting up or is it something from Disqus?

        • Scalia

          It must be your security settings. I don’t get a similar warning on my computer.

        • jim_m

          You could just come to the site you lazy ass.

    • pennywit

      I take a very cynical approach to a lot of so-called originalists. After I read through some of the debates of same-sex marriage among “originalists” on Volokh, it seemed to me that “originalists” tend to form a conclusion, then look for a constitutional interpretation that fits the conclusion.

      • Scalia

        Well, I can’t speak for their arguments, but I think Roberts’ and Scalia’s dissents are decisive.

      • Brucehenry

        Thank you for your reply. I thought perhaps there were several other, competing schools of thought.

        • pennywit

          There are many, many, schools of thought, including divisions among originalists, some of whom believe in adhering to precedent, and some who don’t.

          Scalia here’s going to flay me alive for this, but I’m a little more of the pragmatic flavor of the “living Constitution” school. I think that courts need to stick to the text of the Constitution, but should also apply modern understanding of the text.

          • Scalia

            And Justice Scalia would say:

            When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

            But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.

            This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

            Who gets to say what the “modern understanding” is if such an understanding is not clear from the text? Why shouldn’t it be the People? The methodology you espouse is exactly what I addressed in my column (regarding gay activities). You will certainly disagree with the result, but you cannot disagree with the methodology. To make the law say what it does not say exceeds judicial warrant.

          • pennywit

            Sidebar: Part of me wishes you were the actual Justice Scalia. It would have been fun to think I was crossing swords with him here.

          • pennywit

            On the other hand, you have other originalist scholars (one example at link) who assert that there is an originalist argument for same-sex marriage. I think my own assertion stands. A person might aver that he is an originalist, but his own beliefs will inevitably color his perception of the Constitution.

          • Scalia

            First, your reply neither engages my nor Justice Scalia’s arguments.

            Second, the link you provide isn’t originalism as defended by Marshall and refined by the likes of Bork & Scalia. Originalism specifically rejects the personal intentions of specific legislators. How did the entire body of ratifiers and the body public understand that terminology? That decisively counts against this “class-based” argument peddled as originalism.

            The author of your link says:

            Neither does South Carolina, which plucks out sexist, closed-minded quotes from the 1866 ratification debate to prove the 14th Amendment outlawed only racial discrimination.

            It is irrelevant whether South Carolinians were “sexist” or “closed-minded.” Stern might have thought that was a clever way to load the argument against his preferred view, but it demonstrates the opposite. The body politic did not see a discord between the 14th Amendment and their, say, marriage or restroom laws. Stern is going to need a lot more proof if he’s going to allege that the American population understood that they were doing away with their marriage laws when they approved the 14A.

          • pennywit

            Scalia, I’m talking about the forest, and you’re discoursing on vein patterns in the leaves.

          • Scalia

            When Obergefell was issued, the majority of states had laws restricting marriage to heterosexual couples. When the 14A was ratified, all of them did. Take a step back and tell me please, what do you think the population’s reaction would have been had they been told that they had just declared their marriage laws unconstitutional? They would have thought you were nuts—and I’m not exaggerating.

          • pennywit

            Veins of leaves, my friend.

          • Scalia

            The forest is the People of our great country, my friend. There’s not a snowball’s chance in Riyadh that they understood the 14A the way you allege.

          • pennywit

            Oh, I don’t allege that they understood due process and equal protection I’m any such way in the nineteenth century. I freely admit that I look at the amendment from a modern understanding rather than a nineteenth century understanding.

            I think that a good chunk of originalist scholars (like those who favor same sex marriage) tell themselves lies, tell themselves lies, tell themselves sweet little lies when they try to conform 19th century beliefs to to modern understandings.

          • pennywit

            I think Justice Kennedy’s bias motivated him to pen his excessively purple opinion. And I think that the dissenting justices’ attitudes on gay marriage potentially colored their own thoughts on the issue.

          • Scalia

            And I think that’s irrelevant on both counts. The rationale Kennedy used is illegitimate, regardless his bias. And the rationale Roberts, etal, used is legitimate, regardless theirs. Unless it can be shown that the public understood the ratification to nullify their marriage laws, the argument fails.

          • Scalia

            A person might aver that he is an originalist, but his own beliefs will inevitably color his perception of the Constitution.

            Really? So, the example I gave of a 1790 law proscribing gay activity during state funerals was just a ruse on my part? Do you really think that I would rule in favor of the prosecution in such a case if I were a judge? Do you really think that Justice Scalia had his perception the Constitution colored when he ruled that flag burning is a protected form of speech under the First Amendment? You’re mistaken, my friend.

          • And well he should.

  • Wild_Willie

    Isn’t this whole issue moot? Biden, then the head of the justice committee as the chairman stated no president can appt. a supreme court justice in the waning years of his/her administration thus becoming “the Biden Rule”? Of course the dem”s have a very short memory when their actions come back to bite them. I say waive the 60 margin this time only and get him through. The dem’s don’t care about the rules so why not waive some for a ‘one time only’ fix. ww

    • Brucehenry

      http://www.politifact.com/truth-o-meter/article/2016/mar/17/context-biden-rule-supreme-court-nominations/

      The “Biden Rule” was never a rule at all, but was Joe Biden speculating on a hypothetical. Calling such a statement the “Biden Rule” is dishonest.

      • Sod off, swampy.

      • jim_m

        It was meant as a rule. He was not just spitballing from his desk in the Senate, he was proposing a policy claiming that it would foster comity within the Senate.

        But as we see that dishonest leftist like him and you believe that people should bow in deference to your needs when you don’t have political control and then gladly accept being crushed under your heel when you do. Fuck off.

        • Brucehenry

          Well I may have understated a little what Biden was proposing, but it was, as the Politifact link makes clear, not a proposed “rule.” There was no nomination to consider, and Biden suggested that the Bush administration may want to voluntarily refrain from making a nomination IF ONE WERE TO OCCUR. He also recommended (since he was not majority leader but only judiciary committee chairman he could not decree, as McConnell did) that his party not take up a hypothetical nomination IF IT WERE TO OCCUR. Also, his statement was made in June, not February, so the speculation about potential for partisan rancor may had a greater logic, in my opinion. And there was no suggestion that a hypothetical nomination would NOT have been considered if made by Bush, win or lose, AFTER the election.

          • jim_m

            Oh, what a surprise. You find YOUR side’s arguments to have better justification which you mistakenly call logic without noting that the same logic applies to both cases equally. (Go get a dictionary you dumbass).

            The dishonesty comes when you consider that had the dems been put in the situation of having to deny consideration for a nomination , Biden’s speech was laying the groundwork for doing so. The fact that it was subsequently unnecessary is immaterial. We know they would have do it if the need had arisen.

          • Brucehenry

            Yes justification, not logic. I guess I meant the logic seems more compelling right before the conventions than in February, before Super Tuesday.

            But Wet Willie, above, claimed that what Biden was proposing was that “no president can appoint a Supreme Court justice in the waning years of his/her administration” which of course is in no way what was said.

          • jim_m

            NO. Biden was proposing the a President shouldn’t make any such nomination and that the Senate was under no obligation to consider one.

  • Walter_Cronanty

    Excellent post!

    • Scalia

      Thanks, Walter. How have you been? I’ve missed your posts of late. I hope all is well.

      • pennywit

        **Insert gratuitous Cleveland Browns joke here**

        • Scalia

          You’re all heart.

          • pennywit

            Always, Scalia.

        • Walter_Cronanty

          What a cheap shot! But – our three day Super Bowl is coming up April 27 to 29. Unfortunately, we’re as successful as the Buffalo Bills are in the real one – but the excitement is beginning to build!
          What lucky players will be the next Justin Gilbert and Johnny Manziel?

      • Walter_Cronanty

        All is well. With 2 grandsons, ages 3 and 8, living less than a mile away, the dreaded crud has been spread through the family 2 or 3 times. My wife babysits a lot, as does my mother-in-law, so everyone has been under the weather for various amounts of time – was in the urgent care then pediatric ER for half the day yesterday – strep throat this time. Plus, doing various carpentry/electrical work around the son’s house.
        I thoroughly enjoy your educational, well-researched and well-reasoned posts. You are truly what the innertubes were designed for – not that you shouldn’t teach in person, but your posts on this site are much appreciated.

        • Scalia

          Thanks again, Walter. I’m sorry to hear about the bug tours in your family. They’re making the rounds at our place too. So far, I’ve managed to sidestep them.

          • Walter_Cronanty

            Keep dancing, Pilgrim.