February 16, 2016

Taking Mitch McConnell Seriously

Senator Mitch McConnell
Kentucky Senator and Senate Majority Leader Mitch McConnell
Republicans are arguing that, since President Obama has less than a year left to his term, he should not nominate a person to replaced the recently deceased Justice Antonin Scalia. Instead, he should leave it to his successor to name a new justice. However, Article II, Section 2 of the Constitution says, in part,
[The President] 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. [emphasis added]
Notice the use of shall, and the lack of any suggestion that the “Power” described above does not apply to the final year of a president’s term.

If the Republicans have a legitimate point, however, and the president’s powers should be stripped from the office in the final year of the term, the term of office will effetively become three years. But that means that the president is really a lame duck in his third year in office. Surely he should be prevented from performing his duties in deference to his or her successor in the third year. O wait, perhaps this whole idea is stupid.


  1. I don't believe Senator McConnell or anyone else suggests that the President doesn't have the constitutional authority to nominate. The point surely is simply that it takes 60 votes to get to a confirmation, and with the opposing party in the majority in the senate and in an election year the likelihood of a confirmation is pretty near zero. Of course, the President could give it a try by nominating a more conservative candidate. Some, for example, have suggested Senator Hatch. Republicans then might calculate that while Hatch isn't a perfect nominee, on the premis of "a bird in the hand" and with an uncertainty about the results of, say, a Cruz-Clinton contest in November, it would be a safer course to confirm now. Of course if the President nominates someone more to the left, the Senate would figure that there would be no real cost to a year of delay.

    1. In times past, the president got his nominees approved, even when the Senate was in the hands of the other party. In recent years, however, the Republicans have adopted a scorched-earth policy. At some point, the majority of the American people will have had enough, and the Republican party will reap the rewards of their damage to the Republic. It cannot happen soon enough.

    2. Well, I have an issue with that 60 vote requirement as well (which is just a rule that the senate has created for itself). It is one thing to be able to block the passage of legislation by filibuster, but it seems to me that the senate is not fulfilling its constitutionally prescribed role unless it provides a straight up or down vote on the president's nominees.

      Bill Ghrist

  2. It's not so much, it seems to me, that the institutions of governance are dysfunctional as it is that our society at large is so deeply polarized. Senator Obama was himself one of the leaders of the nearly-successful effort to filibuster the nomination of Justice Alito, and of course the fiasco around the Bork nomination continues to shape the partisan approach to an activist judiciary. There are probably dozens of potential nominees who could easily achieve 60+ votes in the senate, but such a nomination would do nothing to rally the Democratic base in the heat of the campaign, so I would expect instead a more purely political calculation. Both sides will rejoice in the energetic outrage that will ensue, but long-term the constitutional fabric will continue to fray.


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