Monday, September 21, 2020

This Is What The Great And The Good Were Saying in 2016


This is what the great and the good were saying in 2016 about President Obama’s nominating a successor to the seat held by the late Justice Scalia and about the Senate’s duty to consider the Presidents nominee: 

Chief Judge Peter J. Eckerstrom, The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018); and, Chief Judge Peter J Eckerstrom, Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia, 21(4) U. Pa. J. Const. L. Online 1 (Feb. 2019). 

Eckerstrom asserted that the Senate has an “affirmative constitutional duty” to consider President Obama’s nominee. Elsewhere Eckerstrom used “obligatory” and “mandatory” language in regard to the Senate’s duty to act on a presidential nominee. 

Dean Tacha (Pepperdine) & Dean Minow (Harvard) in The Boston Globe in 2016: affirming that President Obama has a “clear constitutional duty to nominate a successor” to Justice Scalia. See  Martha Minow & Deanell Tacha, Opinion, US Needs a Government of Laws, Not PeopleBoston Globe (Mar. 22, 2016), <>. 

David F. Tavella & Anne Marie Tavella, Advice and Consent for Federal Judges: A New Alternative Based on Contract Law, 3 Drexel L. Rev. 521, 531 (2011) (“[T]he [Appointments] [C]lause places an affirmative obligation on the President and the Senate to fill the described appointments ….”). 

Steven J. Harper, “Let the People Speak”?, Lawyer Bubble (Mar. 9, 2016) (“The President has a duty to nominate and the Senate has a responsibility to act on that nomination.”). 

Some even said if the Senate refuses to act on a presidential nominee, then President can appoint the person absent Senate advice and consent! Gregory L. Diskant, Obama Can Appoint Merrick Garland to the Supreme Court if the Senate Does Nothing, Wash. Post (Apr. 8, 2016).

What are they saying now? 


Seth Barrett Tillman, This Is What The Great And The Good Were Saying in 2016New Reform Club (Sept. 21, 2020, 3:01 AM), <>; 


1 comment:

  1. an senators and not a few "#jourlists" of note are saying the next Democratic president should pack the supreme court with 2-3 more seats filled by ideologically like-minded jurists.