Vail Daily column: The presidential power of appointment
As Pooh would say, “Oh bother!”
It’s always something in Washington. And this particular tempest in a partisan teapot has to do not so much with the president’s authority of appointment — and, in particular, his constitutional authority to appoint the justices of the United States Supreme Court — but more to do with politics, plain and simple.
So, you may be asking, what else is new?
Article II of the Constitution vests the powers of the executive branch in the president of the United States and details the powers of that office. In short, the executive branch is responsible for carrying into effect the laws as passed by the legislative branch and making sure that the laws are observed.
The Appointments Clause (Article II, Section 2) gives the executive branch and the president, not Congress, the power to appoint federal officials. The president has the power to appoint federal judges, ambassadors and other principal officers of the United States, subject to Senate confirmation of such appointments. Although the Senate may opt not to confirm a presidential appointment, Congress cannot limit or eliminate the president’s powers to make the appointments.
What the Appointments Clause says verbatim is this:
“(The president) … 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 … ”
So, the plain and simple fact is that the power to appoint the justices of the Supreme Court lies solely in the hands of the president subject, however, to the “advice and consent” of the Senate.
A president is elected for a four-year term. First, by tradition, begun by our first president, George Washington, and then by adoption of the 22nd Amendment in 1947, the president may serve two terms. Each term is four years. To posture that a president may not exercise his constitutional powers in the fourth year of his term is to argue that the president may only act as authorized by the supreme law of the land for 75 percent of his time in office.
Some other presidential powers include acting as commander in chief, keeping the Congress advised of the state of the nation, receiving foreign ambassadors and ministers, commissioning officers of the United States and “tak(ing) care that the laws be faithfully executed.” You would likely agree that if appended to any of these other presidential powers was the phrase “except during the last year of a president’s term,” it would yield an absurdity. Why then, is it less so in exercising his power of appointment?
This, by the way, cuts both ways; Democrat, Republican, independent or otherwise, any president should and must have the right to fulfill his or her constitutional authority including, without limitation, the authority to fill vacancies that arise in the Supreme Court.
Adding irony to the current political bickering is the undiluted fact that the recently deceased Justice Antonin Scalia — arguably one of the greatest wits and writers among the 112 persons who have served throughout our history as justices of the Supreme Court — was a strict constructionist. If anything, he was a strict strict constructionist.
What strict constructionism means is interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. What strict constructionists believe is that the Constitution means was it says, is to be taken literally and is to be interpreted to give effect to what the framers intended.
Scalia would likely say, were he alive today, to get on with it, as he did when Elena Kagan filled the seat vacated by the retirement of Justice John Paul Stevens.
In strict constructionist terms, the power of the Senate to advise and consent was intended to reject presidential appointees for reasons of incompetence, inexperience and impropriety. Increasingly over the years, however, most of the rejections, reflect a difference between the president and the Senate over whether the nominated justice represents the right ideological choice. From 1789 through 2010, the Senate rejected 31 (less than 20 percent) of the 160 nominees to the Supreme Court. Between 1894 and 1967 (a period of 73 years), only one nominee was not approved. The remaining 30 rejections have transpired over the last 48 years mirroring the increasing partisan rancor in D.C.
If the president puts forth a nominee such as Sri Srinivasan, who was confirmed by the Senate in May 2013 by a unanimous, 97-0 vote, the obstructionists would be hard-pressed to claim other than a disingenuous political agenda and would make it awkward for Senate Majority Leader Mitch McConnell to block a vote on his nomination.
The president would be well-advised too, to make his pick wisely so as not to similarly smack of politics. Bring us a person of competence and character. And then the Senate should do what it must do. Politics aside.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, firstname.lastname@example.org and email@example.com.