"Advice and Consent" Misinterpreted, Mischaracterized
"Advice and Consent" Misinterpreted, Mischaracterized
[The President] "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Judges of the supreme Court.
Friday, July 8, 2005
(The U. S. Constitution, Article II, Section II. Full text of the advice and consent clause is pasted below.)
Senate Minority Leader Harry Reid (D-Nev.) referred on Thursday to the President's unprecedented outreach to Senate Democrats on the current Supreme Court vacancy by stating, "Constitutionally that's the right thing to do." And in a Democrat Senatorial Campaign Committee (DSCC) email to supporters on Friday, Sen. Schumer claimed that the President "must engage in real, meaningful consultation before making any decisions." Both statements misinterpret and mischaracterize the advice and consent responsibilities as described in Article II, Section II of the United States Constitution.
The truth is that the Constitution imposes no obligation upon the President to seek advice prior to announcing a nomination, nor does it confer any responsibility or authority on individual Senators to recommend nominees to the Supreme Court.
The Senate's "Advice and Consent" role is limited to the appointment, not the nomination, of judges: the Constitution explicitly states, "[t]he President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...." As renowned constitutional historian David Currie has pointed out, President George Washington did NOT engage in consultation with the Senate on nominations: "no comparable practice emerged with regard to appointments; from the outset the President simply submitted the names and the Senate voted yes or no. . . . Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations."
The President has the right to consult anyone he chooses, and President Bush has already begun to consult individual senators at his discretion - and that is to his credit. But it is the President who must - both initially and ultimately - choose the nominee.
Article II, Sec. II:
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.
http://cornyn.senate.gov/record.cfm?id=240370