Senate Breaking Oath They Are Sworn To Uphold. Can We Press Charges?

[orleans]

snip:
In 2002, the Supreme Court, in Republican Party of Minnesota v. White, 536 U.S. 765, declared that it is not only proper for a judicial candidate to express his views on disputed legal issues -- the First Amendment guarantees him the right to do so. In an opinion written by Justice Antonin Scalia, and joined by then-Chief Justice Rehnquist, and Justices O’Connor, Kennedy, and Thomas, the Court concluded that a Minnesota canon of judicial conduct which prohibited a candidate for judicial office from announcing his position on abortion rights and other controversial issues violated his right to freedom of speech under the First Amendment.

snip:
in the absence of specific answers to senators’ questions about a nominee’s views, his confirmation would be a violation of the Constitution’s Article II requirement that the Senate exercise its "Advice and Consent" function in an informed manner. This implication from the Court’s Minnesota decision, as Justice Ruth Bader Ginsburg explained in her dissent, is clear: "by the court’s reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm."

snip:
The people’s "right to know" is therefore central to the confirmation process.

snip:
The "Advice and Consent" function of the Senate mandated by Article II of the Constitution means informed consent. For too long, trying to understand how a nominee would shape the fate of millions of Americans has been like reading tea leaves. Today, in light of the Minnesota decision, senators would be violating their constitutional duty under Article II if the Senate were to vote on Judge Alito’s nomination without more information about how he is likely to decide some of the most momentous issues of our time.

(emphasis mine)
http://www.commondreams.org/views06/0128-21.htm

"violating their constitutional duty under Article II if the Senate were to vote" on Alito.

does this mean they are breaking the law? committing a crime? can we sue them? should i call a lawyer? (i've been calling the senators for a week now--a lawyer might be a nice change.)

[tritsofme]

1. Sounds like a stretch.

It sounds like this says nominees are allowed to answer such questions, but I don't see where this ruling would oblige them to do so.

This seems to speak more to the rights of the individual nominee more than anything.

[orleans]

2. well, maybe i left something out i should have added

(did you read the whole article? if not, maybe i should have added this part)

snip:
"The Minnesota decision yields three fundamental constitutional principles:

"First, a judicial nominee has a First Amendment right to express his specific legal views on controversial issues even if they are likely to come before him should he be confirmed.

"Second, a necessary corollary of the nominee’s right to express his views is the right of the people and their representatives in the Senate to know them. This right entitles the people to know not only a nominee’s judicial philosophy or general legal views, but, according to the Court in the Minnesota case, how those views are "exemplified by application to a particular issue of construction likely to come before court -- for example, whether a particular statute runs afoul of any provision of the Constitution."

"Third, and most important, in the absence of specific answers to senators’ questions about a nominee’s views, his confirmation would be a violation of the Constitution’s Article II requirement that the Senate exercise its "Advice and Consent" function in an informed manner. This implication from the Court’s Minnesota decision, as Justice Ruth Bader Ginsburg explained in her dissent, is clear: "by the court’s reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm."

http://www.commondreams.org/views06/0128-21.htm

didn't roberts tap dance around a lot of questions too?

[ISUGRADIA]

3. If you are serious the answer is NO

If you think a Senator is not doing his or her job the Constitution offers you this solution: vote againist him or her next election. A case like this would be laughed out of the courts.

[orleans]

4. so a senator "violating their constitutional duty under Article II"

as this piece in commondreams states, is not the same as actually breaking the law. it doesn't make it illegal--it just makes the senator not doing his job well. is that it?

(i wasn't actually serious about getting a lawyer--but i thought it was something the aclu might pursue--in my dreams!)

[ISUGRADIA]

5. In reality most judicial nominees at the lower level

get cursory examinations at best in the Senate. Most Senators never ask a single question of a judicial nominee, only a handful in the Judiciary Committee, maybe. Most sail by with only the briefest of hearings.

Advise is a broad term in the constitution open to individual Senator's interpretation. It says "advise and consent" not drill them on the issues of the day. There's a concept called "separation of powers" Courts would never touch such a case.

So in the end, You can vote them out of office but a Senator has immunity as to conduct of his or her official duties.

[kath]

6. Our legislators also violated their oath on Jan 6, 2001 when they did

not challenge the Florida election results (the scene in "Fahrenheit 911" when not ONE Senator would support the CBC is absolutely heart-breaking) and again in October 2002 when they voted for The Blank Check Resolution.
Looks like many of them think the Constitution is "a goddam piece of paper" like the Chimp does, and that the oath they take is meaningless.

:-(

[Igel]

7. It's a very dangerous, short-sighted theory.

And that's what it is, an theory. Not one well supported by facts and argumentation, and one that ignores the likely negative consequences: free speech doesn't always make for enlightened speech. It nicely twists "right to free speech" to "obligation of coerced speech" in an Orwellian manner; now, it's true that nominees may remain silent, but the writer implies the tacitly required outcome under the Constitution is to vote them down. Tacit, because the Constitution nowhere says such a thing. "The Constitution allows free speech and thereby also guarantees the right to remain silent, but punishes silence." Great slogan. Let's apply it to the 5th Amendment: Stay silent, but do so in jail.

Instead, nominees may remain silent, and the Senate may, at its discretion, punish them for their silence. Or the nominees may speak out and say outrageous things, and be approved. We appoint our reps, and they're not automata. Similarly, a defendant may take the 5th, and the jury does what it wants; the judge gives the jury its charge, and how they fulfill it is sometimes a puzzle.

But it's not just SCOTUS judges that fall under that clause pf the Constitution. There's a wide variety of appointments--100s, probably--that each administration must make each year, with a bulge of new appointments at the beginning of his/her term. The Senate must vote on each one.

For a committee to spend a week investigating each appointment and conducting hearings, and then to have a full debate of the issues in the Senate, would effectively keep the Senate in place 9-5, 5 days a week, 50 weeks out of the year, at least for the first couple years of a new president's term--and until they were done, that prez would be hamstrung rather nicely.