Bench Memos

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Senate & Consultation


From a Cornyn-office e-mail:

U.S. Sen. Charles Schumer (D-N.Y.) took to the floor this morning calling for a “summit” between the President and Senators “and have a real back-and-forth” to ensure a consensus nominee. So I tried to find a similar speech from Sen. Schumer’s colleagues during the Supreme Court vacancies that were later filled by Justices Ginsburg and Breyer. So far, I haven’t found any. There were no “summits” to pick those nominees. President Clinton did not consult 60 Senators on Breyer and Ginsburg—as President Bush has already done during the current nomination process. The consultation efforts by President Bush are unprecedented and welcome, but not mandated by the Constitution. As Sen. Schumer, himself, pointed out in his floor speech, “the decision, of course, by the Constitution is solely his (the President’s).”

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 President’s outreach is to be commended—in fact senior members of the Democrat party have already praised his unprecedented efforts—but consultation does not equal co-nomination.

The President nominates, the Senate’s role is to “advise and consent” on that nomination—after the nominee has been selected by the President. As Sen. Patrick Leahy (D-Vt.) said Monday, “I accept the president’s offer in good faith. I told him that. And I told him I would be glad to discuss some names with him. And realize, of course, it’s his decision in the end…”


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