Obama’s Ahistorical Scolding About the Supreme Court The Founders deliberately gave the Senate control over judicial nominees. Read the debate from 1787. By Betsy McCaughey and Michael B. Mukasey
http://www.wsj.com/articles/obamas-ahistorical-scolding-about-the-supreme-court-1460320194
President Obama is hitting the road and the airwaves trying to convince the nation that the Senate has a constitutional duty to consider his nominee, Merrick Garland, for the Supreme Court. On Thursday the president said at the University of Chicago that Republicans’ refusal to consider Mr. Garland threatens a “dangerous” politicization of the courts “that erodes the institutional integrity of the judicial branch.”
Not so fast. History and the wording of the Constitution teach otherwise. The framers expected that judicial nominations would be political matters—and even that the Senate sometimes might deliberately ignore a president’s nominee.
That is exactly what the upper chamber did after Associate Justice John McKinley’s death in July 1852. The political climate then was intensely partisan, as it is today, and a presidential election loomed that November. In August, President Millard Fillmore, a Whig, nominated Edward A. Bradford, a highly regarded Louisiana lawyer and a graduate of Harvard Law School, to fill the vacancy.
But the opposition Democrats controlled the Senate and expected to win the presidency in a few months. The New York Daily Tribune acknowledged that Bradford was “deserving and qualified” but predicted that the nomination would fail. The Senate refused even to consider Bradford despite his outstanding qualifications. As expected, Democrat Franklin Pierce won the presidency and made his own nomination the following spring.
That wasn’t the only time lawmakers snubbed a Supreme Court nominee for political reasons. In the 1840s, President John Tyler also faced a hostile Senate. Four of Tyler’s five Supreme Court nominees were blocked, including one—Reuben Walworth—whose nomination the Senate completely ignored. After the Civil War, President Andrew Johnson, a southern Democrat, couldn’t get the Republican-dominated Senate to consider his nominee, Henry Stanbery.
That is how the framers planned it. The wording of the Constitution and the decisions they made in the summer of 1787 show they wanted the Senate to control the confirmation process, free to consider or ignore a nomination. The Constitution directs that the president “shall nominate,” but he may appoint only with the advice and consent of the Senate. There is no direction that the Senate “shall” provide its advice and consent, no corresponding obligation on legislators to act. CONTINUE AT SITE
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