The recent death of SCOTUS Justice Antonin Scalia has conservatives in an uproar. So much so, in fact, that several leaders of the GOP have avowed to simply block any nomination President Obama makes for the Supreme Court seat without so much as an up/down vote! The talking heads have been making themselves highly visible on our video screens suggesting that it is inappropriate and that there’s no precedence for a final year president to even bother to nominate a judge to the Supreme Court. That really doesn’t make any legal or historical sense at all. In fact, it isn’t even true. Some Senate GOP leaders have gone so far as to say things like this (source BBC):
"Presidents have a right to nominate, just as the Senate has its constitutional right to provide or withhold consent. In this case, the Senate will withhold it," Sen McConnell said on Tuesday.
Far too few people are correcting this statement, and they should be. Here’s why: The answer lies in the direct wording of the U.S. Constitution, and how some people are picking and choosing where to literally interpret it. Our Constitution doesn’t say that our president has “a right” to nominate. In Article II, Section 2, it says it is his duty to do so. Note the word “shall” in the following quote (my bold):
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Quite the opposite of saying it would be extreme for the POTUS to nominate to SCOTUS, the Constitution actually says that the Senate should consider a more hands off approach in lesser appointments (allowing them to be made by POTUS without their interference), and only provide their “Advice and Consent” in higher-level appointments such as SCOTUS. It never gives them “the right” to simply preemptively block a president’s nomination — just because they don’t like the president and would choose a different nominee if they’d been elected POTUS instead.
So, McConnell was ultimately wrong about both job descriptions. The POTUS doesn’t have “a right” but a duty to nominate. It’s a part of his constitutionally-defined job. Likewise, the Senate doesn’t have, “its constitutional right to provide or withhold consent,” (on a POTUS even making a nomination). The Senate has its own duty to advise and ultimately provide (or refuse) consent upon any nomination made by the sitting POTUS. (Their “by” and “with” deals with the appointment, not the nomination itself.)
Anyway, that’s a HUGE part of what’s currently wrong in the Senate. Many members don’t see their position as a duty anymore. They see it, and the power it affords them, as a right and as a privilege. Until that changes, things aren’t likely to get much better on the Hill.