Bench Memos

Law & the Courts

Seriously, President Obama? Seriously, New York Times?

It’s difficult to take seriously President Obama’s guest post on SCOTUSblog, “A Responsibility I Take Seriously.” For starters, Obama tries, as inconspicuously as possible, to smuggle in his notorious “empathy” standard: Obama wants a justice who will indulge his own “ethics” in deciding what the Constitution means. But this desire is incompatible with his supposed commitment to nominate “someone who recognizes the limits of the judiciary’s role[,] who understands that a judges job is to interpret the law, not make the law, [and who will have] a commitment to impartial justice.”

More amazingly, Obama isn’t attentive to the elementary difference between his power to nominate a justice (i.e., send a nomination to the Senate) and his power to appoint a justice (an act that he may take only if and after the Senate has given its consent to his nomination). Six times he uses the word appoint when the context shows that he really means nominate. E.g.: “as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint …”

Relatedly, I’ll highlight the New York Times’s strange claim (in a news article about Obama’s post) that Senate Republicans

disagree with Mr. Obama’s assertion here that he has the power to appoint [a justice]. The power to appoint is shared, they say, meaning that it ultimately rests with the Senate.

No. All that Senate Republicans are noting is the simple reality that the Senate’s advice-and-consent role under the Constitution means that Obama may not appoint a justice to a lifetime position unless and until the Senate has confirmed (i.e., given its consent to) his nomination. That’s a proposition that no informed person can dispute.

It’s thus entirely accurate for Senate Republicans to observe that the president and the Senate have “shared” (but different) powers in the overall appointment process. But that’s very different from claiming that the “power to appoint is shared” (as though senators would be signing their names to the judicial commission). And while it’s certainly possible that some Senate Republicans have spoken imprecisely, no one, in context, could understand them as referring to anything other than the Senate’s incontestable power of advice and consent.

That power of advice and consent, of course, does not mean that the “power to appoint … ultimately rests with the Senate” any more than the president’s power to veto legislation means that the power to legislate ultimately rests with the president.

The only real question is over how the Senate can and should exercise its advice-and-consent role. And the clear answer to that twofold question is that the Senate has the plenary power to exercise its advice-and-consent role however it wishes (as Democrats have long recognized—see my point 1 here) and that the only constraints are political, not constitutional, in nature. The NYT’s tendentious miscasting of the position of Republican senators would seem designed more to confuse than to enlighten. 

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