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In the White House’s Rose Garden on Wednesday, President Barack Obama named his nominee to fill the vacancy on the Supreme Court. The nominee does not matter in this debate. Really, the process is the issue. The Senate's role is not what the White House and those friendly to this president are making it out to be.
In his usual manner, President Obama spent much of the introduction of his nominee complaining about Senate Republicans, the vast majority of whom have said they will not considering a nominee in an election year. What Republicans are saying is, of course, not out of the ordinary. As FreedomWorks CEO Adam Brandon recently noted at RedState, in 1992, then-Senate Judiciary Committee Chairman Joe Biden (D-Del.) had exactly the same position.
Still, President Obama, who, as a senator in 2005, joined a failed filibuster of Samuel Alito’s nomination to the Supreme Court, urged Republicans to consider his nominee. Because his past actions do not matter, apparently.
“I simply ask Republicans in the Senate to give him a fair hearing, and then an up or down vote,” President Obama said. “If you don’t, then it will not only be an abdication of the Senate’s constitutional duty, it will indicate a process for nominating and confirming judges that is beyond repair. It will mean everything is subject to the most partisan of politics – everything. It will provoke an endless cycle of more tit-for-tat, and make it increasingly impossible for any President, Democrat or Republican, to carry out their constitutional function.”
That is not how this works. That is not how any of this works!
What is the “Senate’s constitutional duty,” as President Obama put it, in this process? Article II, Section 2 of the Constitution states (emphasis added): “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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.”
Beyond these words, the Constitution is silent on the process by which the Senate confirms nominees, save, perhaps, the language in Article I that allows each chamber to create their own rules. How, then, are we to figure out what the framers of the Constitution meant by “advice and consent”? Well, thankfully, they did leave us a guide, The Federalist, to follow.
Written between October 1787 and August 1788 by Alexander Hamilton, John Jay, and James Madison at the height of the ratification debate in New York, these missives, totaling 85 separate articles, provide Americans with the means to understand the purpose of the Constitution. In Federalist No. 76, for example, Hamilton addressed the nomination and confirmation process.
One of the central themes of the Constitution, in addition to placing limitations on each of three branches of the federal government, is that they are meant to serve as a check on the others. The framers realized that unchecked presidential power would be a road to tyranny. The confirmation process for any presidential nominee – including those to the Supreme Court – carries the same spirit, as Hamilton so eloquently wrote.
“[A] man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature,” Hamilton explained. “The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other.”
“He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure,” he added.
Hamilton’s view of the Senate’s role in the process is pretty clear. The members of the upper chamber are not the rubber stamps for the White House that President Obama and others are making them out to be. For “consent” to have any meaning, senators have to be able to withhold as well as to give. This is, of course, the same position that Senate Democrats once held.
There is also the other side of the coin. President Obama has a history of naming nominees – such as Justices Sonia Sotomayor and Elena Kagan, the latter of whom served as his solicitor general – who share his so-called “progressive” political views and activist judicial philosophy. Additionally, this White House has shown a complete disregard for the Constitution by going around Congress to enact its policies.
To say that the Senate’s “constitutional role” is merely to do what this president – or any president, for that matter – wants is to show a complete disregard for the framers’ intent. It is just sad that in all of this, President Obama, who rarely shows any concern for the Constitution and the separation of powers, is treating our foundational document as nothing more than a talking point, and he is still getting it all wrong.