Trump and the Court

Donald Trump has named a man to fill the vacancy on the Supreme Court, but that vacancy should not exist–the slot should already have been occupied by President Obama’s nominee, Merrick Garland, who was blocked by Senate Republicans in flagrant defiance of the sprit of the Constitution and long-established norms.  Democrats should take their cue from Sen. Jeff Merkley and adopt a simple and clear stance on Trump’s Supreme Court nominees. They should oppose any and every Trump nominee unless and until he choses to name Garland to the court. Of course, Trump won’t do that, so in practice they should oppose anyone he nominates. No one could reasonably attack this stance as obstructionist, since it would be entirely defensible on principle. It would actually be a forceful statement against obstructionism.

Bannon on the NSC

A Facebook friend has pointed out something I haven’t seen anywhere else: the appointment of Steve Bannon to the National Security Council is apparently illegal. The legislation creating the NSC clearly specified its membership, which does not include any official who hasn’t been confirmed by the Senate. Why isn’t this getting more attention?

The Council shall be composed of–(1) the President;
 (2) the Vice President; 
(3) the Secretary of State;
 (4) the Secretary of Defense;
 (5) the Secretary of Energy; and 
(6) the Secretaries and Under Secretaries of other executive departments and of the military departments, when appointed by the President by and with the advice and consent of the Senate, to serve at his pleasure.”



  1. Al Wegener February 1, 2017 at 11:54 am

    Interesting, but how do we influence our Democratic senators, and not just in NY, to play this tough ?

    • tonygreco February 1, 2017 at 2:08 pm

      The conventional wisdom is that the best way to influence members of Congress is to call, rather than write or e-mail (better still, of course, is to visit in Washington, but few of us can do that). Honestly, though, I’m not hopeful that many Dems will adopt Merkley’s position. I’m not aware of any that have done so thus far.

  2. Michael T February 1, 2017 at 12:01 pm

    Re: Gardland.You know what the Turtle (Mitch McConnell) says: the democrats should stop whining just grow up. The Turtle is just the l of “defender of the democratic order” that is a trophy for the autocrat. The Roman Senate persisted through four centuries of military dictatorships. Bless them, they never stopped talking.

    Re: Bannon and NSC. I believe there is a provision in the NSC act that allows the president to appoint people who are not listed in the legislation. However, these appointments must are subject to Senate review. The Turtle will, I am sure, be ready to get them votes!

    • tonygreco February 1, 2017 at 2:17 pm

      On the NSC, it’s 50 US Code 3021, whose clear intent is that NSC members be officials who are in positions requiring Senate confirmation. Bannon’s presence on the NSC is so outlandish that I’m not at all sure that there wouldn’t be enough GOP defections to deny him confirmation by the Senate. If any Republican senators are at all interested in drawing a line against Trumpian excess, this would be a very appropriate occasion.

      • Jeffrey Herrmann February 3, 2017 at 8:16 pm makes this observation in concluding thatBannon can attend NSC meetings:
        … Bannon isn’t on the NSC; as mentioned above, he is merely an “invitee.” Considering the control Bannon apparently wields, that may seem like a distinction without a difference, but the President is allowed to “invite” anyone he wants to attend NSC meetings—there is no requirement that these “invitees” be confirmed.

        • tonygreco February 3, 2017 at 9:06 pm

          The executive order lists the president’s special adviser (i.e., Bannon) among the “regular attendees” of the NSC. There is some ambiguity about those two words, but they do seem to mean “members.”

          • Jeffrey Herrmann February 4, 2017 at 1:28 pm

            Here is the description of who attended under Obama:
            “In addition [to statutory members,] the NSC shall include the Secretary of the Treasury, the Attorney General, the Secretary of Homeland Security, the Representative of the United States of America to the United Nations, the [White House Chief of Staff, and the National Security Advisor]. The Director of National Intelligence and the Chairman of the Joint Chiefs of Staff, as statutory advisers to the NSC, shall attend NSC meetings. The Counsel to the President shall be invited to attend every NSC meeting, and the . . . Deputy National Security Advisor shall attend every meeting, and serve as Secretary.”
            So there seem to be statutory members, regular attendees and invitees.
            Isn’t bureaucracy fun?

Have a comment?

Required fields are marked (*)