President/Constitution/Supreme Court/Senate Gobbledygook, part I.
Nothing in the U. S. Constitution says ‘a president’s fourth year doesn’t count.’ What the Constitution does say about the president’s term:
“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:” (Article 2, Section 1)
Nothing in the U. S. Constitution says ‘a president cannot nominate a Supreme Court justice in the fourth year of his term.’ What the Constitution does say about a president’s nominating a justice for the high court:
“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 2, Section 2)
Nothing in the U. S. Constitution says ‘a Senator can refuse to advise and consent if he doesn’t feel like it.’ What the Constitution does say about Senators’ powers:
“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” (Article 1, Section 5) (Also see Article 2, Section 2 again)
Cut through the gobbledygook. Key word: EXPULSION.
I think the same thing this time that I thought last time (2016).
- The president’s term is four years.
- Mitch McConnell should be expelled from the Senate.
Before I clarify points a) and b), later, a short comment on the headlines. Forget about the day’s mantra from the national political press or prominent Democrats – that the GOP leadership, i.e. Mitch McConnell and henchmen, are being “hypocritical” or “inconsistent.” To do it justice, the GOP in the Senate is not being inconsistent. It is being consistent. It pursued a scurvy strategy last time; it is pursuing a scurvy strategy this time. The strategy is to improperly control nominations to the U. S. Supreme Court, an executive power, by legislators. The tactics are somewhat different (not entirely, but I’ll get to that later), but the strategy is consistent. It is also openly and blatantly unconstitutional. Separation of powers in three branches of government is a cornerstone of U. S. government.
As to “hypocrisy,” hypocrisy is the tribute that vice pays to virtue, as La Rochefoucauld used to say. To call McConnell’s action “hypocrisy” or “hypocritical” is just an insult to hypocrites. McConnell and his allies in Senate and party are barely pretending to do the right thing. They’re not even pretending aggressively to seem as though they think they are doing the right thing. They’re legislators (of a sort) trying to control an executive branch power, appointments to the high court. They’re making no bones about it.
(The flip side of the same coin is that they don’t tend to be eager to legislate, when legislation would benefit the public. For example, Congress could heal Social Security simply by removing the arbitrary cap on income that supports it.)
If the Democrats and a few Republicans in the Senate are paying attention, they will at least ensure that any nominee for the highest court in the land is sufficiently vetted. And the time remaining is not enough time for vetting. This is one occasion upon which a genuine filibuster might work.
