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Advice and consent

Harry Reid made the following comment:

The Constitution gives the President and the Senate shared responsibility to fill this vacancy, because the President may only act with the “Advice and Consent” of the Senate. At this critical moment, the President must recognize the Senate’s constitutional role. He should give life to the Advice and Consent Clause by engaging in meaningful consultation with Senators of both political parties.

Mark Noonan objects:

Reid is wrong. The Consitution empowers the President to nominate, and the Senate is vote to confirm or reject the nominee.

But where did Reid say otherwise? All he says in the above comment is that the President and Senate have a shared responsibility not to nominate justices but to fill a vacancy. This is absolutely correct; the vacancy cannot be filled without the Senate's consent. I suppose Reid might be technically incorrect when he says that Bush "may only act" with the Senate's advice and consent; Bush can, after all, nominate as many people as he likes, whether or not the Senate consents. So if that's what Reid meant by 'act' then yes, he was wrong.

But a more charitable (and reasonable) interpretation of Reid's remarks is that he is simply pointing out that Bush can't get anybody on the court without the Senate signing off.

To explain his reasoning, Noonan defers to an earlier post about a proposal that would have the Senate making suggestions to the president about who to nominate:

I am no constitutional scholar, but that sounds clearly unconstitutional to me. For starters, the Constitution clearly states that the President nominates, and the Senate votes to confirm or reject that nominee ... the process of nomination by the President and confirmation of the Senate provides an appropriate check and balance to the power of the President to make nominations. By empowering Senators to offer a pool of "acceptable" nominees would be a breakdown of the system of checks and balances.

...while the President's choice may be overruled, the President maintains the right to nominate another, if not the same person be nominated again. The bottom line: the person nominated must be the object of President's preference—and his preference alone.

This is wrong. The president can consult with anyone he likes about his nomination; nothing in the Constitution prohibits him from doing so. For the Senate to provide a pool of acceptable nominees doesn't break down the system of checks and balances; it just makes the process a little easier.

An analogy: suppose you and I decide to rent a movie. You're going out anyway, so you offer to pick up the DVD while you're out. I say OK, but you've got to pick a movie we both like.

There are many ways of ensuring that the choice is acceptable to both of us. You could go to the movie rental store, take your cell phone, and then call me every time you find a movie you'd like to see, to find out if I'd like to see it too. Or, I could give you a list of movies beforehand that I've been wanting to see, and suggest that you pick one of those, while still leaving open the option of picking something not on the list - so long as you call me and make sure it's OK first.

Both these methods preserve the principle we agreed to abide by - that the rental should be something we both would like - but one is vastly more convenient than the other.

Similarly, the president can either pick a nominee, send it to the Senate, wait to see if the nominee is confirmed, and if not pick another nominee, and so on - OR, he can consult with the Senate beforehand to determine what kind of nominees they would be likely to confirm. This consultation could even consist in the Senate providing the president with a list of suggestions - without violating the Constitution's advice and consent clause.

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