President Barack Obama's claim that the Senate's decision to not hold hearings or vote on Merrick Garland to replace the late Antonin Scalia on the U.S. Supreme Court is "unprecedented," is completely untrue, says Michael Mukasey, former U.S. attorney general and chief judge for the U.S. District Court.
"The historical inaccuracy knows no bounds because it is, in fact, precedented. It happened at least three times in the 19th century that a nomination of somebody qualified was disregarded by the Senate," Mukasey said Friday on "The Steve Malzberg Show" on Newsmax TV.
"In fact, not only is it precedented, but that's actually the way the founders planned it. Back in the time the constitutional convention in 1787, there was a proposal pushed forward by a delegate from Massachusetts who modeled it on the Massachusetts Constitution."
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That model, Mukasey explained, was that any nominee who required confirmation by the Senate, the president could nominate and then the Senate would either then have to confirm by a majority vote.
"No less eminence than one of the authors of the Federalist Papers put up that he felt that actually it should require an up or down vote within a limited number of days and that if they didn't get it, then the nominee would go forward. That was James Madison. That proposal was voted down."
Mukasey said until the Supreme Court is made whole again with nine members, the high court of eight should function pretty well, except in cases where the justices are evenly divided.
In that case, "the chief justice can put it over to the next term and we argue when the court is up to its full complement of nine justices," he explained.
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