Have these Republicans actually read the Constitution?
The RNC has really delivered a gift to opposition researchers like me with their latest line of attack against President Obama: That he’s somehow undermining the Constitution by daring to nominate a judge to fill a Supreme Court vacancy.
Now, I went to law school, but this argument is so easy to refute I could have done it in my sleep after taking 9th-grade civics. But before I high-five my coworkers on an easy day at work, let’s all be defenders of the Constitution by taking a trip back to school.
U.S. Constitution, Article II, Section 2, Paragraph 2:
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.
I would encourage every Republican Senator and staffer to read those two phrases in bold. Memorize them. Highlight them in your pocket Constitution you brag about carrying around. Here’s what they mean:
He… shall appoint… judges of the Supreme Court
The founders decided that it is the president’s job to appoint judges to the Supreme Court. They put it right there in Article II, his official job description. You’ll note that Article II doesn’t include any caveats for “unless he’s in the last year of his term” or “unless you really don’t like him because he’s a Democrat and you’re a Republican.” For as long as Barack Obama is president — which is another 309 days — this is his job.
Republican Senator John Cornyn explained this part very well during Chief Justice Roberts’s confirmation process:
And yesterday, President Obama actually did it. DC Circuit Court Chief Judge Merrick Garland is officially nominated to the Supreme Court. Constitutional duties fulfilled ✓
By and with the advice and consent of the Senate
This is where the founders decided that the president should get buy-in from the Senate before a new justice joins the bench. The Senate does this through confirmation hearings, where they ask the president’s nominee questions to learn about their careers, how they understand the Constitution, and whether they would be a good justice. Then they are, in Chuck Grassley’s words during Justice Alito’s confirmation hearing in 2006, “obligated” to vote on it.
Now sure, they have every right to vote against the president’s nominee if they find him under-qualified, or if his interpretation of the Constitution is out of step with their own. But that’s not what’s happening here. Merrick Garland has enjoyed broad bipartisan support in the past. Some sitting GOP Senators even voted to confirm Judge Garland to his current post on the DC Circuit Court.
But this time the GOP, in the words of Speaker of the House Paul Ryan, wants to “leave this decision to the American people.” AKA they’ll vote against any Obama nominee simply because they were nominated by Obama.
And for the record, the American people did make this decision when they elected Barack Obama (twice!) to be the President of the United States (you know, the person who nominates Supreme Court justices).
There is no question that this obstruction — which could leave the Supreme Court short a justice for hundreds of days — is unprecedented.
In fact, since 1875, every Supreme Court nominee has received a hearing or a vote in the Senate.
That’s my basic Constitutional Law and civics class for the GOP. Will you share this post with them and remind them to read it? Clearly they weren’t great at doing the required reading in school. Thanks.
Andy Crystal is a Research Associate at the Democratic National Committee. He is also a member of the New York Bar.
