The Democrats have a fickle relationship with the Constitution. They spend most days treading upon it and deriding it as an irrelevant, obsolete document that is “’living” and open to broad, ever-changing interpretations.
Some days, however, they will wipe-off the mud they tread upon it and pretend to hold a deep reverence for it. They will claim that voter ID laws are unconstitutional, that the federal government reigns supreme over the states in any fashion they choose, that all lands belong to the federal government unless they have been kind enough to allow the states to have some of their own, that the death penalty is unconstitutional or that broad, warrantless searches of hundreds-of-millions of Americans and their electronic communications are, somehow, compatible with our Fourth Amendment protections.
When their efforts are thwarted, however, they then become the defenders of the document they spend their time trying to undermine.
Now, after the untimely death of Supreme Court Justice Antonin Scalia, the Republicans are faced with an option: allow America’s most-radical and destructive president to pick a jurist to shape policy and advance his agenda for the next two decades, or allow the place more power into the hands of the people by allowing them to choose the next president and the next decider of who will fill the vacancy.
Republicans have maintained that they intend to stall until January on confirming a new Supreme Court justice. The announcement, predictably, has Democrats crying foul and conservatives saying, “Yeah, right…”
Democratic Senator Chuck Schumer blasted the move Sunday on ABC’s This Week. “Show me the clause [in the Constitution] that says [the] president’s only president for three years,” Schumer noted.
He’s correct; the president’s term lasts for four years but while we may be forced to weather another year of disaster and scandal, Sen. Schumer is forgetting one simple fact: nowhere in the Constitution does it say that the job of the Senate is to rubberstamp the president’s agenda.
For years, this has been the case. President Obama claimed that Congress was not moving fast enough to grant amnesty, so he did it unilaterally. They weren’t moving fast enough to undermine the Second Amendment, so Obama stepped-in to do it himself. The Constitution does not demand that Congress serve the will of the president.
In fact, it is quite literally exactly the opposite as the president is to serve as an executor of the will of Congress- not the other way around.
Where was Chuck Schumer, the great constitutional scholar, when President Obama issued his executive orders in violation of the Constitution’s deliberate separation of powers?
Article II, Section 2 of the Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
Where, exactly, in this clause is the notion that the Senate is obliged to confirm or even vote on the president’s nominee?
The clause indicates that the president can nominate and if the Senate chooses, can vote on and approve the nominee. It does not mandate that the Senate must accept whatever judicial radical Obama has dug-up from the Alinsky-style pile of radicals that seem to populate his past.
A fascinating rebuttal of Schumer’s contention appeared in the Weekly Standard where Adam White explained his previous investigation into this matter during the days of George W. Bush.
That is a point I offered once in the Harvard Journal of Law and Public Policy. Writing amidst the war over President Bush’s judicial nominations, I looked at the founding debates at the Constitutional Convention of 1787, and the ratification debates that followed, and found no indication of any expectation that the Senate would be required the vote on a President’s nominees.
The Framers expressly based the Constitution’s “advice and consent” model on the approach used in Massachusetts, under the State’s Constitution of 1780. And, looking through years of archived nomination files, I found myriad examples of nominations made by the governor that received no up-or-down vote from the “Privy Council,” the body that provided constitutional advice and consent.
But the best evidence of the Senate’s power not to vote on nominations is found in the Framers’ rejection of an alternative approach to appointments. As an alternative to the “advice and consent” model, James Madison proposed a discretionary Senate veto. Under that plan, a president’s nominees would automatically be appointed unless the Senate mustered a majority vote against that nomination within a fixed number of days.
In short, Madison would have put the burden on the Senate, to affirmatively act to block a nomination. But the Framers rejected his proposal, and chose instead the “advice and consent” model, placing the burden on the president (and his supporters) to convince the Senate to confirm his nominee.
And history reflects the Framers’ choice. Presidents have made 160 nominations for the Supreme Court. The Senate confirmed only 124 of them. And of the 36 failed nominations, the vast majority of them (25) received no up-or-down vote.
To summarize: no, the Senate is not obliged to confirm, nor even consider, a nominee- not that that will stop Obama from launching his patented smear tactics or keep Republicans from soiling themselves at the thought of incurring bad press from a media that already hates them.
It may be Republican leadership’s goal to stall the process, but considering that 2014’s reclaiming of the Senate and strengthening of the House produced no tangible benefits to conservatives, and given the poor track record of Republicans standing strong against Democrat name-calling, most understand that 3 days of bad press is all it takes for Republican leadership to cave into a cowering, whimpering mess.