1905 Precedent Lets Obama Appoint SCOTUS Judge without Consent

From: Daily Kos

Republican President Theodore Roosevelt:
 "the Constitution did not forbid my doing what I did."

After having recently read through a few of the mostly Conservative and Mainstream Press pieces explaining why Senate Republicans can legally stop President Obama from filling the SCOTUS vacancy, I decided to search for myself, and discovered an 1905 precedent by Republican president Theodore Roosevelt that actually allows Obama to appoint an Interim Justice until the Senate formally either consents or reject his appointment. But before getting to the precedent, let’s review the basic Constitutional facts.

According to this wiki page, the phrase “Advise and Consent” is used only twice in the U.S. Constitution, both instances appearing in the same sentence in Article II, Section 2, paragraph 2, where it 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.

We notice that while a president’s power, by and with Advice and Consent of the Senate, to make treaties, requires a full two thirds of the Senators present to concur, the president’s similar power to appoint Judges of the Supreme Court requires only the Advice and Consent of the Senate majority. The first key point here is that a president’s power to make treaties is more severely constrained by the Constitution than is his power to appoint Supreme Court Judges.

Now let’s look at the precedent. According to this wiki page on the Treaty Clause, in 1905, President Theodore Roosevelt, a Republican, negotiated a treaty without Senate Advice and Consent for a full two years before the Senate finally rejected the action. Roosevelt, on page 510 of his 1913 An Autobiography, details his actions and his reasoning as follows:

The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did. I put the agreement into effect, and I continued its execution for two years before the Senate acted; and I would have continued it until the end of my term, if necessary, without any action by Congress. But it was far preferable that there should be action by Congress, so that we might be proceeding under a treaty which was the law of the land and not merely by a direction of the Chief Executive which would lapse when that particular executive left office. I therefore did my best to get the Senate to ratify what I had done.

For more on the context of Roosevelt’s actual agreement, see page 110 of this link.

While “In 1972, Congress passed legislation requiring the president to notify Congress of any executive agreements that are formed,” this legislation is not relevant to the appointment of Supreme Court Judges because, as the above section of the Constitution shows, there is a substantive legal distinction between an Advice and Consent 'appointment’ and a 'treaty,' 'compact,' or 'agreement.'

So, President Obama’s legal right to appoint a Supreme Court Judge without Advice and Consent of the Senate, being founded on an actual historical precedent by President Theodore Roosevelt that applied to the more stringent Constitutional guideline for treaties rather than non-legal nor binding statements Republicans have of late referred to as “Biden Rules” and “Schumer Rules,” is actually a far stronger, more Constitutionally-protected, right, than the Republican Senate’s right to not even consider granting Consent to a potential Obama Supreme Court nominee. Again, we can simply apply Roosevelt’s statement, “The Constitution did not explicitly give me power to bring about the necessary agreement with Santo Domingo. But the Constitution did not forbid my doing what I did,” to the less stringent Constitutional guideline for appointing Supreme Court Justices, and President Obama has more than enough legal justification to make the appointment, and leave it to the courts to decide whether or not his appointment is Constitutionally protected.

The second key point here is that the U.S. Constitution makes no further statements about the matter, leaving any additional interpretation entirely in the hands of a Federal Court hearing that has not yet taken place. And so, according to the 1905 “Teddy Rules,” President Obama has the Constitutional right to first appoint a Judge to fill the present SCOTUS vacancy, and then wait, as did Roosevelt with his treaty, to see what the Senate decides to do.

For those somewhat squeamish within our ranks who worry that there might not be “enough” precedent for Obama to go forth on this with a clear conscience and sufficient legal backing, recall how for many decades precedent was fully on the side of limiting campaign donations, until the Republican-led Supreme Court upended that precedent with Citizens United. Or recall how the 2000 Republican-led Supreme Court stopped the Florida vote recounting process when it became apparent to them that Democrat Al Gore would defeat Republican contender George W. Bush unless they stopped that recount.

Let’s now enumerate the inevitable steps in the process outlined above, if it is carried through to its end without Republicans first deciding to cave on giving Obama’s nominee a fair hearing and vote.

1. President Obama, using the 1905 Roosevelt action as his legal precedent, appoints a new judge to fill the present vacancy. The Judge is formally seated with the other eight judges, and the new nine-member court now has a balance of power of 5-4 in favor of the Democrats.

2. A friendly suit is initiated in a jurisdiction whose Appellate Court is presided over by a majority of Democrat judges, and this Court affirms, based on the Senate’s having clearly acted in bad faith, and on the Roosevelt precedent, Obama’s appointee,

But will Republicans ever let that happen? I doubt it. What will most likely happen is that upon even hearing that President Obama is contemplating such a series of moves, Senate Majority Leader McConnell will quickly cave, and agree to give Obama’s nominee full consideration with an up or down vote before the full Senate. But unfortunately for the Republican Party, that is only the beginning of the Republican-led Senate’s problems.

The reason is that it takes 3/5ths of the Senate to end debate on the confirmation or rejection of a Supreme Court Justice nominee, so if President Obama were to nominate someone the Republican Senate has already recently confirmed, like, for example, our black woman Attorney General Loretta Lynch -- the litmus test being that his nominee can be counted on to reverse Citizens United and all similar rulings – While Republican Senators might wish to speedily confirm or reject her so all of their attacks are not presented live to millions of viewers day after day after day, our Democratic Senators can decide to keep the hearings open for two, or three, or four months, granting a captivated national audience ample opportunity to see for themselves what a corrupt mess the Republican Party has devolved into, and why it is absolutely imperative to both elect a Democrat president and to give the Democratic Party the four seats we need to win back control of the Senate this November.

One last very important point; We here on Daily Kos can make the Republicans cave without President Obama ever having to say a word or lift a finger on the matter. All we have to do is plaster the Internet with this “Teddy’s Rules” threat, and it shouldn’t take long for Mitch McConnell to insist that President Obama expedite his nominee selection so they can get on with the Consent hearings and votes.

So, share this diary through a link, copy and paste the above with my permission anywhere you’d like, write your own piece affirming that the Roosevelt 1905 precedent allows President Obama to appoint a Judge to fill the current SCOTUS vacancy, and wait for the Republican-controlled Senate to very soon thereafter miraculously come to its senses.