Quote:
Originally Posted by Tyrone Slothrop
I'm not sure we're even arguing, but my point is this: The Constitution sets up the current impasse, because it doesn't establish a mechanism that works in this situation. There confirmation process has worked through a series of norms that have been breaking down, as each side accuses the other of departing from them. It goes back to the Bork confirmation hearings, which Republicans see as an unprecedented effort to block a qualified nominee on the basis of his views. Of course, Bork's nomination was a conscious effort by Republicans to remake the Court. In short, the Constitution is not up to the task where you have a zero-sum, political fight over who serves on the Court. Saying that the President and Senate must agree doesn't tell you what to do when they don't.
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But that is not at issue. I won't argue that they're not allowed to reject a nominee. I just think the Senate actually has to reject him/her. And that requires a vote.
If you read the words, there needs to be a mechanism which provides for some form of advise and then consent (or not). Yes, there is no fix for when they choose to ignore those words (other than a suit which the Supreme Court would decide, I suppose) and pretend there is no nominee. But it seems to me that if they want a zero-sum political fight over who serves on the Court, they actually need to debate the nominee (advise) and hold a vote (consent). Or maybe you believe that the power to make the decision resting solely with the majority leader is a sufficient mechanism. I don't.
If you sat on the Supreme Court and this issue came before you, would you rule in favor of the Republicans (non-)interpretation of the clause and permit them to not even entertain the Presidents nomination? How would you interpret those words practically?
TM
