How Republicans Can Win the Supreme Court Media Battle
Rory Cooper
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“2. Democrats will similarly argue that Senate Republicans have a duty, even a constitutional duty, to give that nominee hearings and an up-or-down vote, and in this respect, they are wrong. There is precedent on the side of Senate Republicans, and even if you discount that, the language and intent of the founders is clear.”

Let’s give some thought to what the founders actually said, by way of the Constitution. The president “shall nominate” and “shall appoint” Supreme Court justices, and he will exercise said powers “by and with the Advice and Consent of the Senate.”

Supposing, for a moment, that the Senate refuses to advise — which you insist is their best strategy — the president then cannot do what the Constitution says he “shall” do.

It’s difficult to read this clause in the Constitution and not conclude that the Senate is being directed to “advise”, in some capacity. Something as minimal as a committee hearing might do, but the flat refusal you’re recommending to your clients doesn’t appear constitutional.

It’s also terrible politics.

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