Republican Senators are violating their Oath of Office by refusing to consider any Supreme Court nominee and are committing a Felony.
Recently, Democratic Senator for New York and a member of the Judiciary Committee, Charles Schumer, penned an editorial in the Daily News: Senate Republicans' Supreme abdication: Chuck Schumer says the NRA doesn't get a vote on Merrick Garland -- senators do.
Schumer cites Republican intransigence, as well as their declared but unconstitutional obedience to the dictates of the National Rifle Association, an unelected private organization whose members often don't even agree with its own leadership (most Republicans also believe Republican Senators ought to have hearings on the Garland nomination).
Yet, despite some recent defections, republicans are mostly still vowing not to confirm any Supreme Court nominee Obama makes, and have done so both in deed and on a signed pledge. Just yesterday, Senate majority leader McConnell said Republicans will not vote on any nominee, even if a Democrat is elected in November and even in the subsequent lame duck session.
In an act of unknowing prescience, Chief Justice Roberts wrote just weeks before Justice Scalia died that the process of nominating a Justice should be free of politics.
"Anytime Judge Garland disagrees, you know you're in a difficult area," Chief Justice Roberts said at his own 2005 confirmation hearing. ..."We don't work as Democrats or Republicans," the chief justice said, "and I think it's a very unfortunate impression the public might get from the confirmation process."
But if anything, the Republican majority has dug in its heels, even as nominee Marrick Garland meets with Democrats and some truly patriotic Republicans.
In response, Robert Reich posted a video through moveon.org saying people should apply public pressure to their Senators through phone calls and letters.
Robert Reich: How to Fix the Supreme Court. How do we get the #GOP to release their choke hold on #SCOTUS? Robert Reich has an answer.
There are problems with this approach.
First of all, viewers of lefty moveon.org videos with Robert Reich are not likely to have Republican Senators, and even less likely to have Republican Senators who will change their stance under public pressure, the fact is public pressure as Reich advocates is not enough.
A much stronger remedy is needed.
The Republicans took an oath of office, as required by the Constitution, to Support and Defend that Constitution. You can't very well do that by keeping the Supreme Court short-staffed. They need to be held accountable, LEGALLY accountable.
This is the specific oath for Congress: "At the start of each new U.S. Congress, in January of every odd-numbered year, newly elected or re-elected Members of Congress - the entire House of Representatives and one-third of the Senate - must recite an oath:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."
(Separately, the "So help me God" ending is optional and otherwise would have been itself a violation of the Constitution, which says:
The Constitution (Article VI, clause 3) also specifies:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.)
But this is the critical section regarding the processing of a president's nominee for the Supreme Court: the oath specifically says the oath-taker will "faithfully discharge the duties of the office on which I am about to enter." This could not be clearer. And it could not be clearer that one of the duties of a Senator - an important one in fact - is to advise and consent on Supreme Court nominees.
The term "advice and consent" first appears in the United States Constitution in Article II, Section 2, Clause 2, referring to the senate's role in the signing and ratification of treaties. This term is then used again, to describe the Senate's role in the appointment of public officials, immediately after describing the president's duty to nominate officials. Article II, Section 2, paragraph 2 of the United States Constitution states:
[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.
There are many legitimate ways the Senate can delay, reject, or otherwise prevent a nominee form taking office, but there has never before been a case where the Senate has pledged to not even consider any nominee.
Typically, a congressional hearing is held to question an appointee prior to a committee vote. If the nominee is approved by the relevant committee, the full Senate must then approve the nomination. The actual motion adopted by the Senate when exercising the power is "to advise and consent". For appointments, a majority of Senators present are needed to pass a motion "to advise and consent". A filibuster requiring a three-fifths vote to override, and other similar delaying tactics have been used to require higher vote tallies in the past. On November 21, 2013, the Democratic Party, led by Majority Leader Harry Reid overrode the filibuster of a nomination with a simple majority vote to change the rules. As a result, for instance, judicial nominees to federal courts and a president's executive-branch nominations can be freed up for a confirmation vote by a simple majority vote of the senate. Nominees to the Supreme Court can still be blocked by 41 senators, however.
Again, the Republican Senators are not doing any of the above practices of denying a nominee; they are refusing to consider it or any nomination at all, in both writing and in practice. There is a very big difference. Delaying and even denying a nominee is within the Senate's right. Refusing to consider any nominee by a sitting president - and the Constitution says nothing about the President's time left in office - under any circumstances is not.
Just to show this is not a particularly Left-wing position, consider this site which correctly considers violation of the oath of office a felony: http://www.abovetopsecret.com/forum/thread912761/pg1 and quotes the statute:
Federal law regulating oath of office by government officials is divided into four parts along with an executive order which further defines the law for purposes of enforcement. 5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office. 5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law, 5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for anyone employed in the United States Government (including members of Congress) to "advocate the overthrow of our constitutional form of government". The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine."
Now, is refusing to consider a Supreme Court nominee, ANY nominee, "advocat(ing) the overthrow of our constitutional form of government"? In the sense that such action prevents one branch of the government from executing its duty to its full capacity, perhaps so.
The President, or perhaps the Vice President, who is the technical head of the Senate under certain circumstances, must charge the Sergeant at arms with the task of arresting all those Republicans who signed a letter and have pursued a stated policy not to fulfill their Constitutional obligations. These are the responsibilities and powers of the SAA, emphasis added:
As the Senate's chief law enforcement officer, the SAA supervises the Senate wing of the Capitol, maintaining security in the Capitol and in all the Senate buildings, and controlling access to the Senate Chamber and galleries through a team of doorkeepers. The SAA also protects the senators and can arrest and detain any person violating Senate rules. Additionally, the SAA can compel senators to come to the Senate Chamber to establish a quorum.
To advise and consent regarding a Supreme Court Justice is not an "option." It is not a choice. It is not something to be put off until one party gets a president they like better. It is a requirement of the position of Senator and a duty under the Constitution. Those who violate that duty need to go to jail.