Advice and Consent

….means exactly that, it’s not that hard, people….

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

~ Article II, Section 2, of the US Constitution


Apparently, to read the news, neither “side” in the political process has ever bothered to actually read the Constitution or study American history.  One group seems to think that the final year of a presidency means the executive branch should just stop functioning and do nothing and make no judicial or other appointments.  Because you know, not having a functional Supreme Court for most of a year seems like a good, logical idea.  Or not.  The other group seems to think that just because they are entitled to appoint a Judge, it means that Congress absolutely HAS to validate the appointment.  It doesn’t.  That’s what advice and consent of the Senate means.  The Supreme Court is the only federal court that has these very explicit mandates from the Constitution.  So basically they’re all being ridiculous.  It’s ridiculous to effectively make the Supreme Court non-functional this whole judicial season.  It’s also ridiculous not to try to appoint a candidate that is palatable enough to both sides that they’ll get through with the consent of the Senate.

But lets be honest, the most ridiculous position here is actually that Presidents shouldn’t be doing anything in the last year of their term, the so-called “lame duck” period.  I promise you the Founding Fathers definitely didn’t believe any of that.  John Adams himself spent the 19 days between the passage of the Midnight Judges Act and the conclusion of his administration appointing and filling as many judgeships as possible.  The joke became that he was STILL signing judges into power up to midnight the day before Thomas Jefferson took over the Presidency.  So anyone who thinks the Founders thought that Presidents were supposed to stop appointing people and doing their job in the final days and even hours of their Presidency has that ALL WRONG.  Of course, Jefferson set about undoing and rescinding those appointments as fast as possible once he started, but hey, that’s democracy for you.  We usually only remember this incident because it gave us Marbury v. Madison, which ironically enough, established judicial review, one of the most important functions of the Supreme Court to this day, and the reason everyone wants to appoint a judge they feels follows their beliefs.  But if we dig further, we find that once they hit the Supreme Court, the justices aren’t really in anyone’s pocket.  There are no real guarantees how a Justice will vote. Lifetime appointments do that.  Which was the whole point!

Res Publica

Documentation without Representation:

The United States Constitution

Electronic Text Courtesy of the National Archives

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