WhoYouKidding on Supreme Court Nominations, Fitz?

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A quick word on the “YouGottaBeKiddingMe” portion of Providence Journal columnist Edward Fitzpatrick’s “Fitz Hits” notes, today.  He writes:

A group of top constitutional law scholars, organized by the American Constitution Society for Law and Policy, said the Senate’s “advice and consent” duties contain no exception for election years.

One needn’t be a lawyer from a left-wing activist group that exists solely for the purpose of “countering the activist conservative legal movement” to read the Constitution.  That document — the starting point for our laws, which no code, regulation, or legal ruling can contradict — puts the appointment of Supreme Court justices in Article II, pertaining to the presidency, not in Article I, pertaining to Congress.

In keeping with that placement, it makes perfect sense that there would be “no exception for election years” on the Senate’s authority to approve of the president’s nominations.  There are no imposed responsibilities on the Senate from which exceptions would be needed.  Simple as that.

Rather, the Senate’s involvement is a restriction on the president.  The president cannot appoint Supreme Court justices without considering the Senate’s advice and earning its consent.  President Barack Obama has done nothing to earn the Senate’s consent and has done quite a bit to advise the body against giving his presidency that significant of a reach into the future.

Even a mildly objective commentary from those to the left of political center should acknowledge that Obama has done himself no favors with the Republican Senate over the past seven years and argue why the Senate should ignore that history for this particular reason.  To the extent that they just assert that the Senate has a duty to review the president’s picks (particularly insinuating a presumption of approval), readers can reasonably infer that their motives are partisan or ideological.



  • Rhett Hardwick

    I have not thought about it since college, but there might be some enlightenment in reviewing the attempt of FDR to “pack the court” back in the 1930’s. He was seeking to insure the Constitutionality of his “New Deal”.

    Not a Constitutional scholar, but I know of no restrictions on the Congress insofar as withholding their “consent”. I believe that was done back when Roosevelt attempted to pack the court.

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