federally speaking 59 by barry j. lipson, esq

8/18/2019 Federally Speaking 59 by Barry J. Lipson, Esq

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Federally Speaking*by Barry J . Lipson (#59)

Number 59

Welcome to the 59th and first issue of the third series of the Federally Speaking™ Editorial Column, that has appeared since

2001 originally on the website of the United States District Court for the Western District of Pennsylvania (WDPA). New

issues starting with #56 (and older ones, too) now appear at: http://sites.google.com/site/federallyspeaking/Home. and/orhttps://www.scribd.com/user/266037734/FederallySpeaking . From our enriched masthead you can see we are now on the

“Gold Standard.” Federally Speaking, which is presented for ALL interested in the Federal Scene, was originally compiled

for the members of the Western Pennsylvania Chapter of the Federal Bar Association and all FBA members, and published in

the Lawyers Journal , the Journal of the Alleghany County Bar Association (ACBA). Its current purpose is to examine,

explore and delve into major Federal trends and significant Federal happenings; give a “heads ups” on Federal actions and

inactions of note; and/or pursue other Federal legal and related occurrences of note. Its threefold objective is to educate, to

provoke thought, and to entertain. As always, we dedicate this issue to our Constitution and our Bill of Rights, may they

now and forever more continue to guide and protect us.

LIBERTY’S CORNER™

THE SENATE’S UNCONSTITUTIONALMALFEASANCE, MISFEASANCE & NONFEASANCE?

Senate Majority Leader Mitch McConnell on February 13, 2016 said, only about

an hour after Supreme Court Justice Antonin Scalia’ s death in Texas had beenconfirmed, and without even knowing who might be nominated:

“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new

president” (emphasis added).

Then on February 23, 2016 Majority Leader McConnell, still before knowing who

might be nominated, reiterated:

"I don't know how many times we need to keep saying this: The Judiciary

Committee has unanimously recommended to me that there be no hearing. I've


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said repeatedly and I'm now confident that my conference agrees that this decision ought to be made by the next president, whoever is elected," and then

stressed that it would be unlikely he would meet with any nominee: "I don't know

the purpose of such a visit I would not be inclined to take it myself." Emphasis

added.

It is even more highly unlikely, as a fact-check should show, that the Democratic

members of the Judiciary Committee have “unanimously recommended to me

[McConnell] that there be no hearing.”

Finally, on March 16, 2016 President Obama nominated Chief Judge Merrick

Brian Garland of the Court of Appeals for the District of Columbia (known as the

“second-highest court in the land”), to join the United States Supreme Court.Previously, on March 19, 1997, a Republican controlled Senate confirmed Judge

Garland nomination to the DC Circuit by the votes of all Democrats and a majorityof Republicans, and three years ago, in 2013, he became Chief Judge of that Court.

Interestingly, in 2010 Republican Senator Orrin Hatch, who had served as

Chairman or Ranking Minority Member of the Senate Judiciary Committee from

1993 to 2005, advised that he saw Judge Garland as “a consensus nominee” for theSupreme Court, noting that “I have no doubts that Garland would get a lot of votes and I wil l do my best to help him get them” (emphasis added).

The U.S. Constitution, Article 2 Section 2 provides in relevant part: “The

President ... 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” (emphasis added).

Thus, the U.S. Constitution does not just give the then sitting President the option

of nominating a Supreme Court Justice, it requires that the “President ... shall

nominate … Judges of the supreme Court … by and with the Advice and Consentof the Senate” (emphasis added). It in no way allows a long-term, short-term or

lame duck President to “duck” this important responsibility, as it in no way allows

Presidents to “duck” their Commander and Chief and other responsibilities.

As this is a mandatory responsibility and not a permissive act, it follows that the

Senate is mandated to give its advice, and to allow each of its members to give


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their advice so a fully deliberated advice consensus can be developed by faithfully

pursuing the procedures for same “which shall be established by Law,” to wit

hearings, etc., and by not engaging in dilatory tactics that disenfranchise any of its

members, such as by denying a hearing, by preventing floor debate, by denying a

vote by the full body, etc. Only in this way can all members be enfranchised and

can it be faithfully and fairly determined whether consent is to be granted or

withheld and if the later advise the President why this was the consensus of the

entire body.

To do otherwise would be to continue to fail to honor the desire, intent and plain

meaning of the Founding Fathers and would amount to unconstitutional

malfeasance, misfeasance and nonfeasance in office; malfeasance being “wrongful

conduct” by public officials, misfeasance being the doing of a seemingly proper actin a “wrongful or injurious” manner, and nonfeasance being a “failure to act when

under an obligation to do so” or a “refusal to act” when it is your legal and/or constitutional duty to do.

And what if the Senate continues to avoid its constitutional obligations; continues

to conduct its business in a manner that violates the letter and spirit of the

constitution; and thus continues to engage in wrongful conduct, continues masking

its wrongful and/or injurious conduct as seemingly proper acts; and/or continues to

fail to act and/or refuses to act when it is under a constitutional and/or legal

obligation and/or duty to do so? Or some might say “a conspiracy to hijack our

Constitutional Democracy,” and others “conducting its business as usual.”

In contemplating a response consider "The Party of No: New Details on the GOP

Plot to Obstruct Obama," by Michael Grunwald, August 23, 2012:

“Vice President Biden told me that during the transition, he was warned not to

expect any bipartisan cooperation on major votes. ‘I spoke to seven differentRepublican Senators who said, Joe, I’m not going to be able to help you on

anything,’ he recalled. His informants said McConnell had demanded unifiedresistance. ‘The way it was characterized to me was, for the next two years, we

can’t let you succeed in anything. That’s our ticket to coming back,’ Biden said.The Vice President said he hasn’t even told Obama who his sources were, but BobBennett of Utah and Arlen Specter of Pennsylvania both confirmed they had

conversations with Biden along those lines.”

Such is a mere fraction of the apparently abundant evidence of unconstitutional

malfeasance, misfeasance and nonfeasance in office. What next? As Congress


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appears unable or unwilling to clean its own house, the constitution leaves the job

to the Courts aided by a party with standing, a complex question in itself, also to be

decided by the Courts. Perhaps such a person would be Obama, perhaps Garland,

perhaps a minority senator, perhaps another injured citizen?

Which brings us to another Wrinkle in Time, Space and American Jurisprudence.

What Court will be the final arbiter? Normally it would be the U.S. Supreme

Court. But as it involves the composition of that Court and perhaps its future

relationship with at least one of the potential defendants – the Senate, its Justicesmight find it necessary to recues themselves. Then too, the Judges of the DC

Circuit, due to the involvement of their Chief Judge, might also find it necessary to

recues themselves. Which leaves us with the U.S. Court of Appeals for one of the

other Circuits…….

Wouldn’t it be “supercalifragilisticexpialidocious” if this suit would actually bebrought with the result of establishing the precedent that encourages and, indeed,

requires Congress to honor our Founding Fathers Constitutional legacy by

providing “We the People” with an efficient consensus government that does notdeny hearings, floor debates, full body votes and/or preventing legislation or

nominations from coming to the floor for political, partisan or personal reasons.

You may contact columnist Barry J. Lipson, Esq., former FBA Third Circuit Vice President, at CorpLaw®

Center, by E-Mail ( [email protected] ). The views expressed are those of the persons they are attributed to

and are not necessarily the views of the author or any other person or entity, and in many instances are to

provoke thought. This Column is dedicated to the preservation of the U.S. Constitution & the Bill of Rights.

C opyright© 2016 by Barry J. Lipson

federally speaking 59 by barry j. lipson, esq

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