Here’s the only rule that really matters

Here’s the only rule that really matters: 

 

 Many people seem interested in the “rules” for appointing and nominating a judge to sit on the Supreme Court.

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court.”

That’s from Article 2 of the United States Constitution. It means THE President, whoever it is, has a Constitutional obligation (notice the word “shall”) to nominate a judge when there is a vacancy on the Supreme Court.

It also means members of THE Senate should offer some kind of “advice” regarding the President’s nominee and either grant their “consent”—in which case the nominee becomes a judge on the Supreme Court—or withhold their “consent,” in which case the nominee does NOT become a judge on the Supreme Court.

That’s it.

How fast or slow that process is, is entirely up to the President (in nominating) and then members of the Senate (in giving advice and choosing whether to consent).

Nothing in the Constitution explicitly states that they must expedite the process, or retard it. Both the President and members of the Senate have discretion regarding the timeliness of the process.

This Constitutional process in no way depends upon has been done in the past. This Constitutional process is not dependent upon the opinions of former or current Democrats, Republicans, or the dying wishes of judges.

Four years ago, President Obama insisted that when a vacancy opens on the Supreme Court, a President should be able to appoint a new judge and get him or her seated on the bench, quickly. That was President Obama’s opinion AND he was not the only one involved. So too were members of the Senate.

Senator Mitch McConnell, four years ago, argued that in that particular situation—with a known change in the Presidency coming up (the President at the time term-limited)—members of the Senate thought it best to wait on the “advice” and “consent” part of the process until a new President was chosen. They had that discretion then, just as members of the Senate have that discretion now.

If there’s one lesson to learn, it is: Want to control how quickly or slowly a President performs Constitutional duties, such as nominating judges? Win a Presidential election.

Want to control how quickly or slowly the Senate performs their Constitutional duties, such as choosing to consent on a judicial nomination, or not? Win a majority of seats in the Senate.