Gee, but it's hard when one lowers one's guard to the vultures...Steve Harley

Wednesday, May 04, 2016


May you live in interesting times...

We must acknowledge Donald Trump's ascendency to the GOP nomination here.

His opponent is the execrable Democrat Hillary Clinton unless FBI Director James Comey indicts her for setting up her own email server, which could and likely did compromise national security, betraying her first duty as Secretary of State.

I have no idea how I'll vote. I'd never consider the swinish Donald Trump for a moment if he weren't running against Hillary, who endangered her country for her own gain.

If only it were notorious losers Dole vs. Dukakis. I voted for both of them. Shows ya what I know.
I used to vote for the best man [person] for the job. There is no such animal in 2016.

Monday, May 02, 2016

Or how about Jefferson: Most Overrated of the Patriarchs?

In a WaPo review of Annette Gordon-Reed and Peter Onuf's game defense of Thomas Jefferson, David O. Stewart reminds us that although Jefferson's ideals and rhetoric were impressive, in the real world he neither lived them personally

“Most Blessed of the Patriarchs” cannot entirely avoid compiling the sort of despairing catalogue of the great man’s hypocrisies that the authors set out to transcend. They note that Jefferson championed those who till the soil as the most virtuous of people, yet he found farming deadly dull, and his fitful agricultural efforts were largely unsuccessful. He denounced political parties as instruments of the small-minded and self-interested, yet he was the most skilled political partisan of his era. He co-founded America’s first political party, which annihilated its opponents and swept to a rarely replicated dominance of the government. Jefferson’s party, considerably evolved, survives today as the Democratic Party.
Most fundamentally, the author of the ringing commitment to equality in the Declaration of Independence built his economic and social life on human slavery. Jefferson bought and sold people. Rebellious slaves at Monticello faced whipping or being sold off. The hypocrisy meter nearly melts at the spectacle of America’s apostle of liberty co-habiting for decades with a woman he owned, Sally Hemings, while owning their children. That the Hemingses received special treatment from the master makes the relationships no less disappointing, even incomprehensible, to modern sensibilities.

nor, more tellingly [and far less commonly known], did Jefferson ever do much to make those grand words and hallowed ideals a reality in his new nation either.

After writing the opening manifesto of independence, Jefferson was not a major force in winning it; he played no role in writing the Constitution or gaining its ratification; he did not secure enactment of cherished proposals to protect religious liberty (James Madison did) or create a legal structure for frontier lands (the Northwest Ordinance did) or for the new constitutional government (George Washington, Alexander Hamilton and Madison did); he neither drafted nor assisted in the adoption of the Bill of Rights; he did not chart America’s foreign policy while secretary of state (Washington did); as president, he failed to defend U.S. ships and sailors when Britain and France savaged them during the Napoleonic Wars (Madison did through the War of 1812); and he never performed a public act that limited or challenged slavery.

“Never did a man achieve more fame for what he did not do.”--abolitionist Moncure Conway
[crossposted at American Creation

Thursday, April 28, 2016

When Historians Attack

[One in an occasional series.]

The fine line between doing history and doing opinion journalism: By crawling into bed with an academic cum unabashed left-wing polemicist like Randall Balmer, John Fea of Messiah College's attempt to link Ted Cruz with "Christian Dominionism" may be risking the same guilt-by-association charge of scholarly hackery that surrounds David Barton.

Plus the act is rather dated. What philosopher James K.A. Smith calls "Theocracy Alarmists, Inc." is showing its age, as Ross Douthat reported way back in 2006 in that other age of theocracy, under George W. Bush:
...whereas Randall Balmer’s Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical’s Lament is less forgivable, because Balmer ought to have known better.
He is an evangelical Christian, a professor of religious history at Columbia, and the author of Mine Eyes Have Seen the Glory, a largely sympathetic exploration of evangelical belief in America. Yet Thy Kingdom Come—a glorified pamphlet, despite its endless subtitle—is indistinguishable from the general run of secularist hysterics, save for a smug reference to Balmer’s spotless Sunday school attendance record and a patina of “real Baptist” outrage over how the Religious Right has supposedly hijacked his heritage. There’s certainly room, after thirty years of culture war, for an informed and evenhanded critique of Christian conservatism, and Balmer’s background would seem to make him an ideal writer for the job.
But while he occasionally nods in the direction of intelligent criticism—noting the disparity between the Christian Right’s fixation on gay marriage, say, and its long-running silence on divorce; or zinging religious conservatives for writing the Bush administration a blank check in the war on terror—these arguments are quickly dropped in favor of the usual litany of anti-theocrat complaints, flavored with the usual apocalyptic rhetoric.
“What would America look like if the Religious Right had its way?” Balmer wonders. “The best answer” is that Christian conservatism “hankers for the kind of homogeneous theocracy that the Puritans tried to establish in seventeenth-century Massachusetts.” A few attempts to insert Intelligent Design into public school curricula constitute an “insidious” plot to overturn the Enlightenment, while the campaign to allow voluntary prayer in public schools is an attempt “to dismantle the First Amendment.” In the debate over vouchers and homeschooling, Balmer (who opposes both) assures his readers that “the future of American democracy hangs in the balance.”
Once again, all roads lead to [R.J.] Rushdoony. Reconstructionism, Thy Kingdom Come asserts, has driven evangelicalism’s “radical tack to the right,” influencing everyone from Pat Robertson to Richard Land to Jerry Falwell to Roy Moore. But unlike Rudin or Phillips, Balmer doesn’t bother to do close readings of conservative speeches, teasing out the Reconstructionist code words and theocratic allusions. He has all the evidence he needs: The Rushdoonian Chalcedon Foundation’s website, Balmer announces with the air of a lawyer delivering an airtight summation, once published a defense of Roy Moore, which was penned “by an associate professor at Falwell’s Liberty University.” So Rushdoony is Moore is Falwell: Case closed. 
When the evidence for Rushdoonian infiltration of the Religious Right grows thin for even the most diligent decoder, the subject is usually changed to the Rapture, another supposed pillar of the emerging theocratic edifice. Premillenarian dispensationalism’s emphasis on the imminent collapse of all institutions, foreign and domestic, would seem an odd fit with Reconstructionism’s idea of hastening Christ’s coming by building his (political) kingdom on Earth. But every 1950s conspiracist knew that when Communists seemed to differ—Tito and Stalin, Stalin and Mao—it only concealed a deeper concord. Similarly, everyone on the Christian Right is understood to be on the same side, no matter their superficial disagreements.

Tuesday, April 26, 2016

Getting high on education

Primary school, 
High school, and then even Higher education.  

Where does it end? Or start?

Are you as smart as an 8th Grader 100 years ago? Rest assured, you are not. [HT: DailyKos]

[And that goes for you too, professor, or you'd be out there taking Alex Trebek's money instead of adjunct proffing at $20/hour at your local diploma mill, you poor suck.]

Why you can't shame or embarrass a Trumpkin

History professor John Fea of Messiah College takes a playful [and deserved] shot at The Donald

Donald, Take Smaller Bites!

See this article for context:
Trump eating

But come to think of it, his unapologetic piggishness is at the core of his appeal, which is only multiplied by the establishment's revulsion. Rodney Dangerfield in Caddyshack--The Snobs Against the Slobs. Trump's fans revel in it, and the more the elite squeak, the funnier the joke he's making of it all.

Sunday, April 24, 2016

Why the left has no reasonable claim to the Founding principles

"It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature."

"But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment. The Federalist No. 78."--Chief Justice John Roberts, dissent in Obergefell v. Hodges

"The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”
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."--Justice Antonin Scalia, dissent, Obergefell v. Hodges

"At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal."--A. Lincoln, First Inaugural

Thursday, April 21, 2016

The Original Donald Trump

Simon, by Marshall Brickman, 1980

    "I will tell you. There is too much bad stuff around. Bad food, bad drink, bad art, bad ideas, everything's all clogged up. So, what we're going to do, is we're going to get rid of all the bad stuff, and that will be a very good beginning. Now, I have here a list of things which I'd like written into the constitution immediately, after which I promise you your lives will be less tense and more rewarding."

  • All muzak in elevators, airports, restaurants and other public rooms will cease immediately.
  • No more children or animals may be used to sell products
  • Lawyers who lose cases will go to jail with their clients
  • No doctor may write a diet book, any doctor who does will immediately lose his license and become a dentist
  • I think we don't really need a House of Representatives and a Senate, the Romans didn't have one so let's just have a Senate, okay? 
  • I think it would be a very good idea from now on, all politicians who appear in public wear cone-shaped party hats. Not bad, huh?
  • Pollution: anybody who owns a factory that makes radioactive waste has to take it home at night with them to his house
  • No member of the government who gets arrested may write a book about it
  • I want to talk about these guys who pull their car into an intersection before the other side is clear and then the light changes and the intersection is blocked. Let's get on that right away. $10,000 fine for blocking the intersection. I really hate those guys.
Justice and a better way of life, that's what we're talking about isn't it? Who's in charge around here? 

THINK ABOUT IT. What of the formula for Orange Julius? The secret white powder that makes it a devilishly good drink? Why is it a secret? I WANT THAT FORMULA!"

Wake up! Start using the right half of your brains. You can move the world with an idea but you have to think of it first!

Actually, the Simon makes a lot more sense than The Donald. I love me some Orange Julius. Bigtime. Justice and a better way of life. I want that formula!

Tuesday, April 19, 2016

You can always count on New York Democrats

New York City, 2016:

Audit for NYC Elections Board 

Called Amid Polling Problems, 

Report of Voter Fraud

New York City, 1871:

Monday, April 18, 2016

Ben Franklin: Indolence & the Welfare State

And his last bit there goes double for me, Messrs. the Public:

"The day you passed that act, you took away from before their eyes the greatest of all inducements to industry, frugality, and sobriety, by giving them a dependance on somewhat else than a careful accumulation during youth and health, for support in age or sickness. In short, you offered a premium for the encouragement of idleness, and you should not now wonder that it has had its effect in the increase of poverty.
Repeal that law, and you will soon see a change in their manners. St. Monday, and St. Tuesday, will cease to be holidays. SIX days shalt thou labour, though one of the old commandments long treated as out of date, will again be looked upon as a respectable precept; industry will increase, and with it plenty among the lower people; their circumstances will mend, and more will be done for their happiness by inuring them to provide for themselves, than could be done by dividing all your estates among them.

Excuse me, Messrs. the Public, if upon this interesting subject, I put you to the trouble of reading a little of my nonsense. I am sure I have lately read a great deal of yours; and therefore from you (at least from those of you who are writers) I deserve a little indulgence. I am, your’s, &c. ARATOR.

Saturday, April 16, 2016

Bernie Sanders "Meets" the Pope

I wonder how many "low-information" voters will read headlines such as

Bernie Sanders Meets Pope Francis at Vatican 

but not make it alllll the way down to the 6th paragraph, where it's disclosed that Bernie basically ambushed him.

Pope Francis downplayed the meeting, saying he saw Sanders outside Santa Marta, his residence, and they exchanged hellos. "When I came out he was there, he was staying at Santa Marta and knew at what time I would be leaving. I greeted him and his wife, a handshake and nothing more. It’s called courtesy," the pope said while returning to Italy from his trip to Lesbos. 

What's substantively bizarre about Sanders' stunt is that he is in Rome for the 25th anniversary of St. John Paul II's Centisimus Annus, which commemorated Pope Leo XIII's 1891 Rerum Novarum.

Not only does John Paul condemn socialist/statist politics

From the same atheistic source, socialism also derives its choice of the means of action condemned in Rerum novarum, namely, class struggle...Therefore class struggle in the Marxist sense and militarism have the same root, namely, atheism and contempt for the human person, which place the principle of force above that of reason and law.

Rerum Novarum also explicitly condemns socialism both as demagoguery and moral injustice, and Bernie's going on hajj to celebrate it?

To remedy these wrongs the socialists, working on the poor man's envy of the rich, are striving to do away with private property, and contend that individual possessions should become the common property of all, to be administered by the State or by municipal bodies. They hold that by thus transferring property from private individuals to the community, the present mischievous state of things will be set to rights, inasmuch as each citizen will then get his fair share of whatever there is to enjoy. But their contentions are so clearly powerless to end the controversy that were they carried into effect the working man himself would be among the first to suffer. They are, moreover, emphatically unjust, for they would rob the lawful possessor, distort the functions of the State, and create utter confusion in the community.

Is Comrade Sanders an even bigger idiot than Herr Trump?

Friday, April 15, 2016

Understanding Pope Francis

[Though subtitled "God & Man in the 21st Century," the New Reform Club is not a theology blog. Theology is presented for informational purposes only, for the benefit of all and any ignorant and godless bastards here gathered.]

If you've been wondering what the hell Pope Francis is up to lately, or is ever up to lately [and most everybody does], don't read the newspapers, and fer crissakes don't trust CNN, OK?

Our blogbrother Steve Kellmeyer also has a personal blog, The Fifth Column, that sorts out Catholic matters for those who'd actually like to know what the Catholic Church is saying-- not what the press thinks the Catholic Church is saying, since they know little or nothing of Catholicism [and what little they know is probably wrong].

On Papa Francis's latest, Brother Kellmeyer's bullet points [read the whole thing!]:

Amoris Laetitia 
The new papal apostolic exhortation, Amoris Laetitia, is out.
A few words may be in order.
Here is a summary of what I found to be highlights (your may find others, when you look):

This is news to the folks at EWTN

Homosexual unions are again condemned

Islamic practice of FGM is specifically called out as reprehensible

One of the more beautiful passages in the exhortation

Article #75 has a great description of exactly how the grace of marriage works

Pope Francis notes opportunities

Another beautiful passage

Article #83 has a great exhortation against abortion

Bishops, take note:

Bishops, priests, DREs: stop trying to replace parents

Articles #91-94 are a great passage on what "patience" means. In fact, the whole discussion through #119 is a wealth of material for meditation.

Note the difference in attitude towards children

Another beautiful passage

Pope Francis paraphrases Pope Benedict

Important advice for newlyweds

Possibly the most beautiful passage in the document

This passage speaks for itself

Re-iterating constant teaching

Nothing new on homosexuality

Bishops, take note

On Correcting children (read through #274, but here is a highlight)


Good to remember for training spouses - they have to learn to trust each other

Great summary on sex education

Nancy Pelosi, please call your office:

The Church's declaration on a particular marriage's validity/nullity CAN be wrong:


A quote from the Summa (I-II, q. 94, art. 4.)

Justice through Mercy

Thursday, April 14, 2016

Seth Barrett Tillman: Obama vs. Marbury v. Madison? [!]

The Weekly Standard cites our Seth Barrett Tillman's definitive work at NRC:

This argument from authority is hardly convincing. As Seth Tillman notes This precise issue was addressed by the Supreme Court in Marbury v. Madison. "Chief Justice Marshall wrote that the President's nominating a person to an office is 'completely voluntary,' not a duty, much less a constitutional duty."

Geez. Marbury v. Madison is only the earliest Supreme Court case they still talk about, and Seth has to re-edumicate the greatest legal minds of our time on it.

All is lost. Or nearly so. Bless you, Seth. Keep scrappin'. There's a constitution in there somewhere.

Wednesday, April 13, 2016

Parsing Abortion Arguments

Recently, the head of Planned Parenthood, Cecile Richards, said that the discussion of when life begins was not really relevant. She said her children's lives began at birth. Many people were horrified. They shouldn't be.

Christians shocked by Cecile Richards' response perhaps aren't used to hearing the Jewish viewpoint: True, there is a fairly wide range of opinion on the subject within the Jewish community, but Reform Judaism is the largest bloc in the United States and they generally argue that life begins at first breath.

Unless you understand other people's arguments better than they do, you won't succeed in changing their minds. Many Christians believe a human person begins at conception.

Hindus and Buddhists argue that human beings pre-exist conception, Muslims define the beginning as a certain number of days after conception (depending on whether the child is male or female).

People who argue abortion often make little headway because they compare apples and oranges. Here's a scorecard to help you keep track of what the subject is. Arguments about abortion generally revolve around three areas:

1) being alive vs..
2) being a human person vs.
3) the rights inherent to a human person.


1) Being Alive

When people say "We don't know when life begins", they aren't making a statement about evolution.

The sperm is alive, the egg is alive, the fertilized egg is alive. the embryo alive. All of it is alive. When we discuss abortion, we aren't discussing when "life" begins. What people really mean to say is "We don't know when the human person's life begins."

But, since you DO know when the human person's life begin, and they claim not to know, they actually mean, "We can't agree on when the human person's life begins." Correct them immediately and verify that this is what they meant. Definitions matter. This is why:


2a) Personhood: Biological tests

In almost every case, they will then insist on some biological test to establish personhood. Some popular biological tests are listed below.
  • Size – is it too small?
  • Appearance – does it look human?
  • Heartbeat (not all living persons have heartbeats, yet all living snakes do)
  • Brainwaves (you don't need brainwaves, to be alive. Cows have brainwaves but are not persons)
  • First breath (Jews believe no child exists until the first breath after birth infuses the soul)
  • Physical suffering: Cannot feel pain, so killing is justified (neither can surgery patients)
  • Viability (depending on time period considered, none of us is viable)
  • Birth defects (what counts as a birth defect? Two X chromosomes?)
The problem, of course, is that science cannot even consistently define what life is, much less specify the kind of life which is personhood.

These are all external tests. None of them really demonstrates personhood; at best, they are all merely proxies for personhood. After all, if external tests were sufficient to know a person, then the most efficient way to get to know someone would be to meet them, and then immediately vivisect them: slice open their chest, examine their stomach contents, crack open the skull and verify brain structures, etc.  Every biological test - stethoscopes, EEGs, MRIs, etc. - are all forms of painless or virtual vivisection by which we verify the integrity of various bodily structures.

Yet, for some odd reason, people rarely take their first dates to an MRI scanner or have their EEGs checked. If these tests were really efficient tests for determining the quality of personhood, everyone would subject each other to these tests all the time. If you want to know what a person is, consider whether there can be such a thing as a person who has absolutely no brain. Such persons do exist.


2b) Personhood: Communication tests

Most people don't even realize that they require a communication test for personhood. They think they are demanding some inherent quality of being, such as:
  • Self-Awareness
  • Social capability: can embryo make decisions?
  • Rationality vs. non-rationality
  • Sense of morals and/or ethics
  • Presence of Ego/soul
  • Sense of humanity
Unfortunately, it is impossible to demonstrate any of these attributes unless the entity is capable of communicating. Someone who possesses one or more "inherent" attributes but cannot communicate them to the outside world will be judged a "non-person". Many people who were thought to be in comas turned out not to be - they simply were unable to move the muscle systems necessary to establish communications with others, and so were misdiagnosed. 

Persons can only be known by self-revelation. You can't know if I like Snickers bars simply be examining my stomach. You might see that I have eaten one, but you don't know if I like it until I tell you. I have to reveal myself to you.

One of the reasons the Romans considered everyone else to be barbarians is that no one else spoke Latin. They couldn't communicate with them, therefore they considered them subhuman. This was a common conceit in early history - most peoples considered themselves human and everyone else subhuman barbarians for the same reason. Modern people make exactly the same judgement: if you can't communicate, you aren't a person. 

The triumph of Christianity was exactly the realization that communication doesn't matter - others are fully human even when we can't communicate with them. What matters is the presence of the human soul, which is comprised of the human intellect and human will. Whether the soul can successfully use the tool of the human body to communicate is irrelevant. Non-Christians don't understand reality well enough to accept this understanding, so they revert to a variation of the pagan view: "If you can't talk to me, then you aren't human."

In fact, this is arguably why the "biological test" for personhood is so popular. The culture would like to retain the Christian insight (communication doesn't matter), so it uses tests that do not require the subject to communicate (EKG, EEG, etc). Unfortunately, by treating the subject as an object, those tests throw away one central aspect of personhood: self-revelation.

However, this raises another problem. What if the entity can talk to you, but it isn't a human person? 

Within a few years, we will have a different kind of misdiagnosis: the Turing test. Machines may soon be able to communicate in ways that make them hard to distinguish from persons. If a machine does communicate in this way, is it a person or the illusion of a person? We can create auditory, visual and tactile illusions. Would this be a kind of logical illusion? After all, the machine is really just following a program written by a real person or group of persons. So are we communicating with the machine? Or are we communicating with a group of persons, some who may even be dead? Is a computer that passes the Turing test really just an interactive book, a cell phone conversation once removed, or is it something more? 

And given the fact that the machine is created by a group of persons, will it be a walking, talking example of a corporation, the "legal person" idea dreamed up by lawyers and judges in the late 1800s? To Christians, it is obvious that computers which pass the Turing test are really just rather complicated phone calls to recording machines. But others won't see it that way. 


3) Personhood: Rights

Even if you can agree on how to define the existence of a person, what rights does a person have? Are rights inherent to the individual (e.g., granted by God or ontology), or are rights granted by society?
  • Does society grants rights? 
    • Can we kill it if its existence would make us feel guilty:
      • for refusing to care for it as we should (it would suffer)
      • for not being able to care for it as we should (it would suffer)
      • if someone else could care for it as we should have (e.g., abort rather than adopt)
      • That is, do others have a right to make us feel guilty by volunteering to care for it? 
  • Can we replace it?
  • We have already granted society the right to take away other people's lives (death penalty).  
Arguments about death penalty vs. abortion are merely arguments about whether society's right to take human life is limited (to the guilty) or unlimited (government can kill whoever it chooses). For instance, the Chinese agree that women are persons, but deny that women have the right to choose the number of children they bear. The government does. Belgian doctors agree you are a person, but you don’t choose when your life ends. They do.

So, Planned Parenthood doesn't really care about biological tests nor communications tests. By their lights, personhood is granted by society through society's delegate: the woman who gives birth. If society (the woman) denies you personhood, then you are a non-person, subject to whatever future society (the woman) deems appropriate.



If one person mentions brainwaves while the other insists on a woman's right to choose, the two people are talking past each other. One wants to know what constitutes a person, the other wants to know what rights a person has. Point this out. Ask them to settle on one discussion or the other, and then stick to that discussion.

If you are trying to define when personhood begins, then don't discuss personal rights until the definition is agreed upon. If you want to discuss personal rights, there is no point bringing in a discussion of when personhood begins. They don't care when personhood begins - they just care what rights a person has. 

Tillman Responding to Washington Post Op-Ed: Gregory L. Diskant--Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing

April 10, 2016

The Washington Post

Opinion Editorial Editor

RE:   Response to Gregory L. Diskant’s Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing (April 8, 2016, 9:01PM) 

Dear Editor,

Gregory L. Diskant’s theory—that, after 90 days, in the absence of concrete Senate action, the President can act alone and appoint Judge Garland to the Supreme Court—does not pass constitutional muster.
First, “Diskant’s” theory is—when all is said and done—Professor Matthew C. Stephenson’s theory. In 2013, in Yale Law Journal, Professor Stephenson, of Harvard Law School, argued that Senate inaction worked a waiver or implied consent subject to a 90-day rule of thumb.[1] But Stephenson squarely stated that his theory, to the extent it worked at all, only worked for Executive Branch positions, and not in regard to judicial appointments, including Supreme Court appointments.
The second reason “Diskant’s” position fails is that it relies on an analogy to waiver[2] in the context of litigation adjudicating individual rights. But neither Senate action nor inaction implicates any individual rights. Therefore the analogy fails. If the House passes a bill, even a money bill which must originate in the House, and the Senate wholly fails to consider the bill, who in his right mind believes the House and/or President can construe the House bill as a proper federal statute, and then proceed to implement the bill as if the bill had also passed the Senate? To put it another way, generally, constitutional procedures restricting public bodies cannot be waived precisely because the interests they protect do not belong to the institution, but exist to protect the public. In short, Senate inaction cannot waive actual advice and consent.
The third reason “Diskant’s” position fails is because it was rejected by Marbury v Madison and all subsequent legal authority (at least, until Professor Stephenson’s article). In Marbury, Chief Justice Marshall, writing for a unanimous Supreme Court in 1803, characterized the nomination and appointment process as “completely voluntary” and “voluntary,”[3] respectively. Likewise, in 1999, the Clinton Justice Department’s Office of Legal Counsel issued a memorandum which characterized every step of the nomination and appointments process as “discretionary.” This memo expressly included Senate advice and consent.[4] If something is “voluntary” or “discretionary,” it means you don’t have to do it. After more than 200 years of unbroken practice requiring actual affirmative Senate consent before the President may make a lifetime appointment to the federal judiciary, it is now too late in the day to play let’s pretend, and to impose an arbitrary and fixed 90-day time limit on Senate action. Such time limits have no support in the Constitution’s text, and, if for no other reason, that should end the legal discussion. Of course, if the American People believe the President or Senate have erred politically, then that wrong can be corrected at the next regular election—and only in that manner.

Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members.[5] Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties;[6] to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock.[7] Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.


Seth Barrett Tillman

Lecturer, Maynooth University Department of Law

PS: My co-bloggers do good work. So, please have a look around New Reform Club.

Twitter: ( @SethBTillman )

Other responses to Diskant can be found at [Professor Jonathan Adler], [Professor Michael Ramsey], [Professor Ilya Somin], and [Ed Whelan at National Review], which in turn cite other commentary.

My prior post is [here]: Seth Barrett Tillman, A Letter from the Grave: Scalia to Tillman, September 13, 2010The New Reform Club (Apr. 13, 2016, 5:24 AM) 

[1] See Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 973 (2013) (“I would not extend this proposal to judges; for judicial appointments, it would make more sense to read ‘Advice and Consent’ as requiring an affirmative confirmation vote.” (emphasis added)); id. at 941–43 (explaining that theory of implied consent does not apply to appointments to the federal judiciary); id. at 971 n.98 (citing Seth Barrett Tillman’s scholarship). 

[2] See generally Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause (July 2, 2014), available at (discussing which constitutional rules and standards are subject to waiver).

[3] See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (Marshall, C.J.). 

[5] See Act to Amend the Judicial System of the United States, ch. 22, § 1, 16 Stat. 44, 44 (1869), codified at 28 U.S. Code § 1. 

[6] Consider Justice Jackson was on leave from the (9-member) Supreme Court, when he appeared as Chief U.S. prosecutor at the Nuremberg trials. Was deadlock a consideration during his absence? Likewise, consider that President Washington appointed Chief Justice John Jay envoy to Great Britain. Jay accepted the diplomatic post, but he did not resign from the Supreme Court until after he negotiated the so-called Jay Treaty (signed Nov. 1794; ratified 1795). See Notice of John Jay's Powers (1794) [here]; Jay Treaty (signed 1794) [here]. 

[7] Cf. Michael Ramsey, Robin Bradley Kar & Jason Mazzone: Why President Obama Has the Constitutional Power to Appoint--and Not Just Nominate--a Replacement for Justice ScaliaThe Originalism Blog (Mar. 30, 2016, 6:45 AM) (“Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court. Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.”).