Everyone is of course talking about the Supreme Court. Who will Obama nominate? Does the Senate have the responsibility or duty to confirm the nominee?
Here’s what the Constitution says: “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. . .” (Article II, Section 2, Clause 2).
So it’s a three step process. First, the President nominates. Second, the Senate gives “advice and consent”. Third, if the Senate actually “consents”, the President appoints. (In fact, the President has the ability to change his mind about the nominee, even if the Senate has already confirmed, as long as the President has not already taken the third step of appointing the nominee.)
It is clear that the Senate is not simply to “rubber stamp” the nominee. If that were the case, it would be wholly unnecessary to include them in the process. (Note that the House of Representatives is excluded from the process.) Furthermore, if the Senate is expected to do MORE than rubber stamp the nominee, that necessarily includes the ability to REJECT the nominee. Otherwise, the only other option would be to consent, which would bring us back to “rubber stamp”.
Imagine the result if the Senate could NOT reject a nominee, or was not even part of the process. You would lose the entire system of checks and balances, as the President would have the sole power to appoint whomever he/she chooses to both the Supreme Court, as well as the lower federal courts. The founders never intended that, as you can imagine.
The Constitution remains the most important document ever written, outside of the Bible. Even in this most critical political process of appointing a Supreme Court justice, our founders had the incredible foresight to implement sufficient checks and balances.
I’m hoping the current Senate will take their obligations seriously. I have my doubts, as most of the Republicans in the Senate are weak. But I remain hopeful nonetheless.