Article II and the Nomination Process

The Constitution in Article II, Section 2, paragraph 1 lays out the duties of the President as the Commander in Chief of the Army and Navy of the United States. Paragraph 2 gives “the President the power, with the advice and consent of the Senate to make treaties; and to nominate, by and with the Advice and Consent of the Senate to appoint Ambassadors, other public Ministers and Consuls, judges of the supreme Court, and all other Officers of the United States…”

The key words in section 2 are “with the advice and consent of the Senate”. It doesn’t say they have to consent to every nomination or that the President gets blanket approval to every appointment and nomination. The Senate is to investigate and vet the persons nominated and then give their advice and consent. If they do their job correctly with the good of the country in mind then those whom they approve will be a benefit to the whole nation.

When it comes to judges, who have no term limits, it is crucial that they support and respect the Constitution as it was written. Judges are to judge based on law. Think of them like umpires in a baseball game who make their calls based on the rules of the game. The Constitution is the rule book for the laws of the nation.

Rules, just like laws, do not change because of someone’s opinion or public opinion. Judges are not to read into the rule book things that are not there simply because they think it should be there. That is usurping the role of Congress by making law instead of judging the law as it is written.

The Framers of the Constitution knew that there would be a need to add to the Constitution over time and thus they provided a way to amend it in Article V. They made it difficult to change the Constitution knowing that if it was easy then the role and power of government would grow quickly. They made it so that the people had a say into the proposed amendments just as the people had to approve the Constitution through the ratification process.

Currently, the nomination process has become highly politicized to the point of actually trying to ruin some nominee’s reputations if they don’t have the proper or preferred ideology. Therefore, many highly qualified strict constructionist judges are not moved out of the judiciary committee for a full up or down vote. Plus they have made it harder for them to be approved by requiring sixty votes instead of the simple majority as the Framers intended.

In the last eighty years when there has been a vacancy on the court during an election year, no nominations have been made. However, even though this administration has filled two vacancies, they are vetting candidates anyway to try to fill the current opening. The Senate is under no obligation to vote on the nominee and thus far they are signaling that they will wait and let the next president fill this vacancy.

We will hear much wailing from the Democrat side saying this is wrong and unconstitutional etc. But during the last eighteen months of the Bush administration they were declaring that he should not nominate anyone during that time. So there is a whole lot of hypocrisy going on with the help of the media to make it look like something is unconstitutional when it isn’t. Mind you this is one of the few times when following the Constitution seems to be important because half of what liberal legislators do is unconstitutional and they never appear to care.

“These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman.” —Thomas Paine (1776) Based on this quote we will have to wait and see how the Senate Republicans stand.

Hopefully, this clears up some questions on judicial nominations and how the process has been so politicized that the Framers would not recognize it. When the opposition tries to destroy judicial nominees that have a record of upholding Constitutional principles it makes it hard for good candidates to agree to be nominated. After all who wants to put their families through that kind of attack? That’s why it is important to have a president that has the strength to stand and fight for his nominee instead of compromising and nominating someone acceptable to all.

Dinner Table Discussion: What are the characteristics that make a good judge? What good reasons can you think of for waiting till the next president is in office to nominate the next supreme court justice?