ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Democrats in the U.S. Senate are again seeking consultations before President Bush submits nominees. Here's Senator Reid today:

There is a long tradition of Presidents consulting with the Senate before a nomination occurs. In 1869, President Grant appointed Edwin Stanton to the Supreme Court in response to a petition from Senators and House members. In 1932, President Hoover shared with Senator William Borah a list of the candidates he was considering to replace Justice Oliver Wendell Holmes. Borah persuaded Hoover to move the name that was on the bottom of the list to the top. That candidate, Benjamin Cardozo, was confirmed unanimously.

Liberal legal scholar Michael J. Gerhardt has written that the Grant episode in 1869 and the Hoover episode in 1932 represented "Presidential Abdication of Authority." And, in those two cases it was the Senate majority that was bossing the president around! Gerhardt wrote that it was "a large majority of the House and Senate" that urged Grant to nominate Stanton. Likewise, Senator William Borah was the Chairman of the Senate Foreign Relations Committee --- not the ranking member.

Even liberal Democrats like John Podesta and Mark Agrast "do not suggest that the Constitution requires" consultation before the President makes a nomination --- much less requires consultation with the minority.

It's true that Senator Hatch advised President Clinton in 1993 to consider nominating Ruth Bader Ginsburg or Stephen Breyer to the Supreme Court. However, Hatch certainly never threatened a filibuster if he didn't get his way.

Listening to friendly advice and consultation is fine if the President is so inclined, but the Democrats want to offer their advice at the point of a gun. As Senator Reid puts it: "meaningful consultation with the Senate will help us avoid a divisive episode like we saw over the nuclear option."

UPDATE: Edward Whelan has a piece in National Review on June 24 regarding this subject. Bench Memos also covers the subject. And, Senator Schumer's website has a copy of a letter that 45 Senators sent June 23 to President Bush, requesting consultation.

UPDATE #2: Senator John Cornyn sent a letter to President Bush on June 17, 2003 that set forth some relevant information:

As renowned constitutional scholar and historian David Currie has pointed out. . . . “Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations." Alexander Hamilton wrote in Federalist No. 76 that . . . . In the act of nomination, [the President's] judgment alone would be exercised." Law professors frequently consulted by Senate Democrats have expressed similar views. Professor Cass Sunstein, for example, has agreed that "the Constitution contemplates no formal prenomination advisory role for the Senate but reserves the act of nomination exclusively to the President." Professor Michael Gerhardt has similarly explained that "the Constitution does not mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation on the president to consult with the Senate prior to nominating people to confirmable posts."