So by now everyone has heard about the passing of Justice Antonin Scalia and the subsequent fight that has broken out over the Supreme Court. Dear Leader Obama is claiming that he needs to fulfill his Constitutional duties and I suppose that he’s correct. It is not the Constitutional duty of the Senate to vote on any nominee. Here’s the text of the Constitution, Article II, Section ii:

“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

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.”

There is no requirement for the Senate to vote in favor of, or vote at all for anyone the President nominates. The Senate has given its advice to the President and does not have to consent. Many nominees have failed to become a justice due to political opposition among other reasons. Posted below is the number of Supreme Court nominees who have not made it to the Supreme Court, 1789-2010:

To take an excerpt from the publication Supreme Court Nominations Not Confirmed, 1789-August 2010 by Mr. Henry B. Hogue for the Congressional Research Service here’s a description of political opposition to nominees by lame duck Presidents:

“Opposition to the nominating President played a role in at least 16 of the 36 nominations that were not confirmed. Many of the 16 were put forward by a President in the last year of his presidency—seven occurred after a successor President had been elected, but before the transfer of power to the new administration. Each of these “lame duck” nominations transpired under 19th century Presidents when the post-election period lasted from early November until early March. Four one-term Presidents made nominations of this kind. President John Quincy Adams nominated John J. Crittenden in December 1828, after losing the election to Andrew Jackson.  President Tyler’s third nomination of Walworth, second nomination of King, and only nomination of Read all came after Tyler had lost to James Polk. President Millard Fillmore nominated E. Badger and William C. Micou after Franklin Pierce had been elected to replace him. Finally, President James Buchanan forwarded the name of Jeremiah S. Black to the Senate less than a month before Abraham Lincoln’s inauguration. Other nominations where opposition to the President was a major factor include the remaining unsuccessful Tyler nominations, Fillmore’s nomination of Edward A. Bradford, and Andrew Johnson’s nomination of Henry Stanbery.”

Let’s look at some statements made by prominent progressive Party members:

Progressives will claim that what these individuals said wasn’t really what they said. From the ThinkProgress article No, Joe Biden Didn’t Say That The Senate Should Block Supreme Court Nominees During An Election Year:

“But Biden’s full speech undermines their claim. Rather than urging his colleagues to deny Bush’s potential nominee a hearing, Biden was bemoaning the politicization of the confirmation process — hence his suggestion of not holding a hearing in the heat of a presidential election — and what he saw as Bush’s refusal to properly consult with the Senate in selecting a nominee. In fact, just 10 minutes after calling for temporary inaction on Bush’s candidate, Biden actually promised to consider a moderate Supreme Court nominee. “

So President Obama is going to ask Senate Republicans who should be nominated? Based upon President Obama’s previous Supreme Court nominations I don’t think that that’s in the plan, especially since this is his change to nominate a young version of Ruth Bader Ginsburg. As I said before, the Constitution isn’t very specific on how the nomination process has to go. I’m sure that McConnell would be all for voting for another Chief Justice Roberts, but that’s probably not going to happen.

“Biden made his remarks in the context of reforming the entire judicial confirmation process, which, he claimed, had been marred by Justice Clarence Thomas’ contentious confirmation hearings. “

Of course, no details are given on why Justice Thomas was a bad candidate. But hey, if the Party can make a smear movie to re-write history he’ll look like a bad guy right?

“As Chairman, Biden repeatedly confirmed Bush’s judicial nominees during the 1992 election season. In the second session of the 102nd Congress, ‘the Senate confirmed more nominees, 11, to the courts of appeals that year than in any other presidential election year in United States history,’ holding hearings ‘on district court nominees every month from January to September; court of appeals nominees received hearings in every month from February to September.’“

The Senate confirmed a decent number of people, but the folks at ThinkCommunist Progress left out the large number of nominations that were rejected. From the publication Nomination and Confirmation of Lower Federal Court Judges in Presidential Election Years from the Congressional Research Service:

“The second session of the 102 nd Congress is particularly notable in the context of judicial nominations for two things: first, the Senate confirmed more nominees, 11, to the courts of appeals that year than in any other presidential election year in United States history; second, at its sine die adjournment, the Senate also returned more court of appeals nominations to the President, 10, than at the end of any other Congress until the 106th Congress (1999-2000).“

What comes around goes around.

“During most of the second session of the 102nd Congress, the pace of Senate consideration of judicial nominations dd not generate much controversy in the Senate Judiciary Committee, on the floor of the Senate, or subsequently on the campaign trail. This prompted one campaign observer to note that ‘about 100 of 828 federal judgeships are waiting to be filled, but three debates yielded not a single comment about how George Bush, Bill Clinton or Ross Perot would use such appointments to affect a generation of justice.’ While the Senate was in its traditional August recess, news reports quoted Judiciary Committee staffers as saying that the pace of confirmations generated ‘very little criticism from either the Justice Department or the White House.’ Soon afterwards, however, a news account reported that Democrats, who had the Senate majority, began, upon their return from the August recess, ‘to delay confirming some of President Bush’s nominees for major judgeships to preserve the vacancies for Gov. Bill Clinton if he is elected President.’“

Who would guess that a progressive wouldn’t read all of the source that they cited as evidence? Oh well, maybe next time. I’ll post some more food for thought below. As always, sharing is caring!

The Federalist-5 Worst Responses To GOP Plan To Delay Supreme Court Confirmation

The Federalist-No, The Senate Doesn’t Have To Confirm Obama Appointees

Power Line Blog-Confirmation Bias, NY Times Style

Who is Robert Bork?

Power Line Blog-The Supreme Court Controversy in one Sentence