Bench Memos

The Power to ‘Nominate’ Is Not the Power to ‘Appoint’

Senate Republicans, to their credit, have with one voice been emphasizing the importance of letting the voters in November determine who will fill Justice Scalia’s seat. 

Cue the straw men.

Contrary to questions asked of the presidential nominees on Saturday, nobody is claiming that the President has no authority to nominate Supreme Court Justices.  The president has every right to nominate the candidate of his choice.  But “nomination” doesn’t mean the same thing as “appointment.”

Article II, Section 2 of the Constitution says the following about the President’s power over judicial nominations (italics added):

. . . [H]e shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . 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[.]

Sure, it would be nice if President Obama agreed it would be best for the country to allow the American people to choose who shapes the direction of the Court.  But I don’t think anyone really thinks he will take the high road, even if it means letting a Democratic successor have that opportunity.

All Republican senators are saying is this: If the President does nominate someone, the Senators will take their own constitutional duty seriously.  Contra Elizabeth Warren, there is no constitutional provision requiring Republican Senators to fall in line behind whoever the President nominates.  Each of them has taken an oath to the Constitution and must not confirm someone who would rubber stamp this president’s lawless agenda.


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