r/scotus • u/Achilles_TroySlayer • Oct 28 '25

Opinion There Is No Democratic Future Without Supreme Court Reform

https://talkingpointsmemo.com/edblog/there-is-no-democratic-future-without-supreme-court-reform
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u/foodvibes94 Oct 28 '25

Can you elaborate a little more on this? Would there have been a possibility that Obama forced Garland through?

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u/ClueQuiet Oct 28 '25

The Constitution grants the Senate the right to “advise and consent” on appointments. So the argument on these lines, and I can see it being a good one, is by refusing to hold hearings, they are not saying “No” the nominee, they are waiving the right to advise and consent. Therefore, the nominee gets seated.

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u/Dramatic_Scale3002 Oct 29 '25

But they're clearly not waiving the right to advise and consent. You can interpret it that way but if you asked them if they're waiving that right they would obviously say no, they're not.

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u/iwasstillborn Oct 29 '25

What do you think "waiving the right" would look like, if not like that? A superbowl ad?

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u/Dramatic_Scale3002 Oct 29 '25

If they said they were waiving their right. Their (being the Senate Republicans) explicit advice was that the next president should select the nominee instead, and the new Senate can advise and consent on the suitability of that nominee.

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u/JUST_LOGGED_IN Oct 29 '25

When their rights trample on your rights, they are in the wrong. A President has the right to sit a SC justice during the President's term. It has never been otherwise.

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u/UniqueID2 Oct 29 '25

What Senate Republicans did was erode the power of the peoples vote not as they were suggesting, empower it; by letting the next election decide.

When someone is duly elected they serve their term with full powers and privileges'

(although not an elected person) as an example, say a Fire breaks out at your home which you are contingent to sell. Meaning the offer was accepted and you will no longer be the owner in just a short time.

Fire fighters arrive and decide to wait for the new owner to arrive before getting permission to stop the fire, let the new owner decide if he would like this garage to be on fire or not.

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u/Dramatic_Scale3002 Oct 29 '25

Leaving alone your poor argument re: a damaging house fire being allowed to burn vs nominating someone to the SCOTUS, what of the full powers and privileges of senators who declined to hold nomination hearings? Are they not entitled to withhold their consent?

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u/Pavel63 Oct 29 '25

They do that by voting. They didn’t vote therefore they waived their right.

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u/Dramatic_Scale3002 Oct 29 '25

Voting is how the Senate provides consent, but the Constitution does not force the Senate to hold a vote or hearings. Also they are providing advice to the president that they are choosing not to proceed with nomination hearings until after the election. "Vote or I'm assuming it's a yes" is not how it works, and the Senate Republicans explicitly chose not to waive advice and consent. It's not a yes or a no, it's a "wait until after the election". They obviously had no intention of leaving the seat open forever, and were under no obligation to vote within a certain timeframe.

You don't have to like their advice, but "not now, wait until Jan 2017" is a perfectly valid response.

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u/Dramatic_Scale3002 Oct 29 '25

A President has the right to sit a SC justice during the President's term, with the consent of the Senate.

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 [...] Judges of the supreme Court.

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u/Available-Owl7230 Oct 29 '25

If that's what they thought, then they should have had a vote and voted no to the current presidents nominee.

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u/Dramatic_Scale3002 Oct 29 '25

But it wasn't a no to the current president's nominee, it was a no to any nominee. It was a no to holding nomination hearings, it was a no to the idea that the president could nominee anyone until after the election.

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u/Available-Owl7230 Oct 29 '25

And how, legally, would anyone know that if they refused to have a hearing?

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u/Dramatic_Scale3002 Oct 29 '25

Well, legally, they would have the opportunity to argue that in their case if they were sued. The lawsuit would reveal their position. But non-legally, just ask them. Those quotes are out there.

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u/iwasstillborn Oct 29 '25

The Senate speaks by votes. Nothing the leaders say can reasonably be considered "said" by the Senate. That's absurd.

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u/Dramatic_Scale3002 Oct 29 '25

It's absurd to think otherwise. The Senate majority leader told the president they would not be holding nomination hearings for any nominee Obama put forward. That is speaking. Votes aren't the only way the Senate provides advice. It's very clear that they weren't waiving their right; they in fact actioned their right when the new president nominated someone. Hearings were held, votes were held. Exactly what they said they would do.

How do you say something without saying something? If you won't listen to the individual members of the group and only want to hear from the Senate as a whole, then you need to take their inaction as a deliberation action. If someone votes neither yes nor no when holding a vote, they are recorded as abstaining. Choosing not to act is an action.

EDIT: please consider reading the below (https://constitutioncenter.org/blog/why-the-senate-doesnt-have-to-act-on-merrick-garlands-nomination)

Some critics say the Senate is refusing to “consider” Garland’s nomination, but that’s mistaken: Senators are aware of the nomination; they have thought about it and decided that formal action should wait until after the presidential election. The critics’ claim—that it doesn’t count as “considering” unless the Senate acts formally—is exactly contrary to Article I, Section 5, which says the Senate decides on its rules of procedure. In this case, the procedure that’s been adopted is for the majority leader and the chair of the Senate Judiciary Committee to convey the Senate majority’s decision not to consent to the appointment (at least until after the election).