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Barack Mandrell and the Mandamus Sisters - Blather. Rants. Repeat.
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Barack Mandrell and the Mandamus Sisters

That might be my reachiest post title ever. But stay with me here.

The President did his job today: he nominated a moderate jurist- older, as these "political" appointments go (i.e., he's older than me, but not by much); chief judge of one of the most respected appellate courts in the country below the Supremes; and one who Republican obstructionists in the Senate both confirmed to the federal bench in the past and praised in the even more recent past.

Senate leader Mitch McChinless has already slammed the chamber door on the effort.  Hell, Obama could've nominated Ted Cruz, or Robert Bork, or dug Scalia out of the still-fresh sod and done Weekend at Nino's until someone complained about the stench. They still would worry something was "up" and refuse hearings.

Because these nominations are always a crapshoot anyway. Take the most hated-by-the-right decisions of the past 60 years: Brown v. Board of Ed.  Roe v. Wade. The Obamacare and same-sex marriage decisions of the past several years. Every one of them was written by a Justice appointed by a Republican president.  So the only sure thing they've got going is the chance to deny Obama a final-year victory to add to his legacy....

or so they think.

Oh, they're trying.  The spinmeisters have already started calling their stall tactic the "Biden Rule," inspired by an unfortunate statement the then-Senator made in late 1992 about it not being appropriate for Bush Daddy to get to pack a third of his nominees onto the Court  after already getting two picks in less than four years (including the odious Clarence Thomas).  And this is different, how? Let's count:

1) Obama's also made two prior picks- in just over seven years;

B) Biden's remark was much later in the last year of H-Dubya's term; and most important;

iii) It never fucking happened.  There were no vacancies to fill in the year 1992. Thus, the Senator never had to weigh his apparent opinion against his actual oath.  Thus, there is no "Biden Rule." (As opposed to what they should call it, which is the "Thurmond Rule"- because Ol' Segregatin' Strom DID filibuster one of Johnson's nominees- of a sitting Associate Justice to the Chief job- in 1968, LBJ's final year in office- and kept him from getting the job.)

But that's trivia. Let's go back to that "oath" thing.  In Abe Fortas's honor as being the last actual victim of the Thurmond Rule, I turn to an American Jewish newspaper:

Dozens of Republican senators, many professing religious piety, have stated that they will not discharge their duty set forth in the Appointments Clause of the U.S. Constitution, which reads, in part, “The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”

Have they considered the religious consequences of their inaction?

When United States senators take office, they say this 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.”

It goes on to talk about the religious significance of oath-ing, from at least an OT perspective, and ends with the premise that the Senate should do the right thing:

The oath is meant to evoke the profound moral convictions — religious or secular — of the person who swears it. The oath stands as a reminder to representatives and constituents alike that there are duties to fulfill, even if we’d rather not fulfill them, and that those duties are to be considered sacred.

It’s meant, in other words, precisely for situations like this one.

Yet if they won't? And trust me- they won't, unless dragged kicking and screaming.  Fortunately, there's a writ for that.


The good thing about being a lawyer is you get experience in some of this stuff.  And our nation's various governments, from Congress all the way down to the Village of Mayberry Sewer Department, have more than occasional instances of officials either overreaching or refusing to do their job.  When Kentucky clerk Kim Davis took it upon herself to defy Supreme Court precedent because, Jeebus?  It was a writ of mandamus that ordered her to issue marriage licenses and led quickly to her brief martyrdom contempt jailing.  There are also writs of prohibition (an official is doing something we must stop), and writs of certiorari (a court did something wrong that can't be reversed by the standard appeal rules- this, technically, is what almost all SCOTUS decisions originate from).  In most states, these ancient writs with Latin names have been plain-Englished or shop-talked away from their roots: all three in New York come under something called "Article 78," which is an entire practice specialty I do not possess (and not the number on the tickee for your laundry).  But the Supremes tend to be old-fashioned about names, so mandamus it remains.

Someone has already thought of this for this situation, and it seems just right to me:

There is a way to force anyone to perform their Constitutional Duty: The Writ of Mandamus. At the Federal level, the writ applies to anyone who has an explicit duty to act and who refuses to act or delays until the delay violates the duty. No President has ever before sought a Writ of Mandamus to force the Senate to do its duty; but the actions of the current Senate exactly matches the requirements for seeking the writ.

In the next few weeks, President Obama is expected to nominate someone for the vacant seat on the US Supreme Court. Obama’s nominee will be extremely qualified to be a Supreme Court Justice, but that won’t matter. The Senate has already said that they will not give Obama’s nominee a hearing, no matter whom he nominates.

About 90 days after Obama has presented the Senate with his nominee, if the Senate has still not performed their duty and given Obama’s nominee a fair hearing, then Obama will have the right to request a Writ of Mandamus. Obama would have to Sue the Senate in the D.C. Circuit Court or the US Supreme Court, naming each individual Senator, and requesting that they be ordered to perform their constitutional duties or appear before the Court to Show Cause why they did not perform their duty. If the Senate still does not act, Obama would sue again seeking a Writ of Peremptory Mandamus, commanding the Senate to do their duty.

Such a case would go on appeal, if not originally brought there, to the very Supreme Court that is now down a cylinder- a Republican cylinder.  McChinless should be scared shitless that it would result in a 5-3 precedent that would, forevermore, require an up-or-down vote on every SCOTUS nominee- and perhaps on every judicial nominee, depending on how pissed off the five of them are.  (At worst, the court would deadlock 4-4, which would uphold the Republican blockage- this time- but would have no precedential value.)

The clock began today.  I'm not sure I agree with the 90 days, especially if they refuse to even hold hearings.  I'd start at the beginning of April, with hopes of a decision by the end of June.  Which, in these circumstances, seems about right for "all deliberate speed."

2 comments or Leave a comment
angledge From: angledge Date: March 17th, 2016 09:14 pm (UTC) (Link)
Interesting! I wonder if Obama is considering doing this. Imagine if it ended up in front of the DC Court of Appeals - in front of Judge Garland. Hee!
liddle_oldman From: liddle_oldman Date: March 18th, 2016 05:43 pm (UTC) (Link)
My question is, aren't these creatures violating their oaths, and why is this not treason?

'course, I'm already a little cheesed at them all, there at their tea party.
2 comments or Leave a comment