The headlines for the past several days have focused on the “showdown” between President Obama and the Republicans in the Senate over a replacement for the late Justice Antonin Scalia. There is no reason to have a showdown.
Some say that the President should not nominate a replacement in the last year of his term just months before an election. Some say that the Senate should not consider any nominee of President Obama in the last year of his administration.
One liberal activist group called “Demand Progress” announced that 110,000 had signed a petition that reads, “Please do not delay in fulfilling your constitutional duty to consider and confirm nominees to the Supreme Court.”
The Constitution is not a difficult document to read. It is plain and straight forward. The loud arguments are often presented as if they are constitutional. The reality is that they are purely political arguments and should be viewed as such.
Before getting into arguments about whether the President must nominate and the Senate must confirm, one should simply read what the framers of the Constitution wrote.
Article II, Section 2 of the Constitution refers to the Executive branch and the power of the President to make appointments. The portion specifically relating to the nomination of Judges to the Supreme Court reads as follows:
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….
First, the President “shall” nominate. Nomination comes from the President and the President alone. The President is free to obtain any input from anyone before making a nomination.
Second the Senate plays an important role. The President nominates, “by and with the Advice and Consent of the Senate.” Listen carefully to mainstream media and you will hear phrases similar to the one used by Demand Progress when their petition referred to the Senate’s “constitutional duty to consider and confirm nominees.”
The Demand Progress group is misrepresenting and making up words. There is no “constitutional duty to consider and confirm a nominee.” The President’s nomination must meet the consent of the Senate. There is no requirement for the Senate to give a reason or explanation for their decision to withhold consent.
Compare the Senate’s role of Advice and Consent to the power of the President to veto a bill passed by a majority in the House and Senate. Article I, Section 8 sets for the procedure for the President to veto a bill.
The President can approve and sign the law or if he does not approve, he sends it back to Congress with his objections. There are specific requirements for the President when he vetoes a bill. There are no requirements for the Senate if they choose not to consent to a nominee.
The Affordable Health Care Act was signed into law by Obama in 2010. It passed the Senate by a vote of 60 – 39 and the House by a vote of 219 – 212. In November of 2010, the voters revolted and put Republicans in charge of the House. In 2014, Republicans took control of the US Senate. In 2016, the House voted to repeal Obamacare by a significantly larger vote of 240 to 181.
There has been a great deal of crying and hand-wringing by the left calling for the Senate to consent to Obama’s nominee. At the same time there has been no outcry, even from the right, for Obama to perform his “constitutional duty” to sign the repeal of Obamacare.
The Senate’s power of Advice and Consent is just as constitutional as the President’s power of the veto. The President can make his nomination. The Senate can choose not to consent. They are not required to consider the nominee. They are not required to confirm or reject the nominee. The Senate is not required to do anything.
The burden is on the President to nominate a candidate who will obtain the Senate’s consent. The burden is not on the Senate to consent.
Our founding fathers wisely framed the constitution to provide checks and balances. There is no need for a showdown.
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