Senator Charles Grassley has responded to President Obama’s post last week on SCOTUS blog titled “A Responsibility I Take Seriously.” Which responsibility might that be? “The power to appoint judges to the Supreme Court,” said the president.
The reader who makes it through the seven-paragraph post will notice, as Grassley did, that the President uses the verb “appoint” or a word derived from it no fewer than six times, the other five being “appointing the person,” “the person I appoint,” “the person I appoint,” “my constitutional duty to appoint a judge,” and (again) “the person I appoint.” Those uses of “appoint,” wrote Grassley, fundamentally misunderstand the Constitution, which “grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.”
Grassley could have said more; that the president’s power to nominate judges is plenary, that only the Senate has the authority to consent or withhold consent, and that the Senate’s consent is required if the nominee is to be appointed. Obama wasn’t interested in such points, making reference not even once to the verb “nominate,” and choosing to advise senators on their “constitutional responsibility to consider the person I appoint.” This new-fangled “responsibility to consider,” which for Obama seems to entail hearings and debate and a vote, isn’t in the text of the Constitution. It reads instead (as we may need to keep reminding ourselves): “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court.”
