ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

It's clear that Senator Specter has a perfectly good reason for saying stuff like, "The advice clause of the Constitution has been largely ignored," at his Washington Post interview.

Obviously, what happened at his interview with the Washington Post was this. Specter must have asked for a copy of the Constitution, and the Post must have inadvertently given him the Leahy-Broder copy of the Constitution, instead of the real thing. The real Constitution says that the president:

"shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges"

However, the Leahy-Broder version of the Constitution says that the president:

"shall seek the Advice of every Senator who wishes to help nominate, and by and with the Consent of the Senate, appoint ... Judges"

You see, this is all just a big misunderstanding. If the Post had given Senator Specter the actual, real Constitution, then Senator Specter obviously would have agreed with what Senator Cornyn has written (very accurately and eloquently) on this subject:

Some Senators are now even claiming that they should have a role in selecting the next nominee to the Supreme Court. The president, of course, is entitled to consult with whomever he wants, but cooperation is a two-way street, and one can certainly understand a president's reluctance to take advice from those who have obstructed his finest nominees.

Moreover, the Constitution is clear: The president, alone, nominates judges. The Senate has an important advice-and-consent function, but that function applies only to the confirmation, and not the nomination, of judges. Much has been made of the word "advice," but as early Senate practice teaches, the Senate's constitutional function is simply to "advise" whether it considers a particular appointment to be a good idea and, separately, to "consent" to that appointment regardless of the Senate's own advice. (For example, when the Senate, for the first time, exercised its advice-and-consent function with respect to a treaty, it resolved "[t]hat the Senate do consent to the said convention, and advise the President of the United States to ratify the same.")

Doubtless the Post also gave Senator Specter a faulty copy of US Senate Rule 31, Section 1, which in reality makes it crystal clear that the Senate is supposed to give its "advice" as the final step of the confirmation process.