An invented "right" to appoint Supreme Court justices

  • 16 February 2016
  • NormanL
An invented "right" to appoint Supreme Court justices

That there will be a huge fight over the next nominee for the U.S. Supreme Court is beyond question. But it is somewhat stunning to see Mr. Obama's partisans assert not only that he has the "right" to nominate someone to fill the seat left vacant by Justice Scalia's untimely death, but also that the Senate must obediently confirm that nominee. Mark Fitzgibbons offers a stern rebuke to both:

 As reported by Huffington Post, “Former Secretary of State Hillary Clinton fiercely defended President Barack Obama's constitutional right to appoint a replacement for Supreme Court Justice Antonin Scalia.”

PoliticusUSA says, “Democratic presidential candidate Sen. Bernie Sanders slammed Republicans for their absurd denial of President Obama's basic constitutional right to replace the deceased Justice Scalia on the Supreme Court.”

The intended impact of the language is clear: Denying Obama on his nomination to replace Justice Scalia is violating his “constitutional right.” The GOP is therefore against constitutional rights. That certainly markets the issue to the left and low-information voters better than the Senate’s having the constitutional check on Obama’s power.

Federal Paper No. 76 addresses presidential appointments. It mentions no such “right,” but instead “the power of appointment.” It even calls appointments a “duty,” but combined with the “approbation” of the Senate, which the Constitution refers to as “consent.”  Writes Federalist 76 author Alexander Hamilton, “The possibility of rejection [of the nominee] would be a strong motive to care in proposing.”

The governing “rights” of kings were deemed “divine.” That notion was rejected in the creation of the American constitutional republic. Through the Constitution, the people granted power to government.

Government has power. The people have rights. The Constitution created checks on government power to protect the rights of people. That’s the American formula. That concept is lost on Obama, Hillary, Bernie and their cohorts in the liberal press.

A great deal is lost on the liberal press. But that's a given.

The President can, in the normal course of his duties, nominate whomever he wishes to the Court. Nothing in the Constitution prevents him from doing so.

But as Fitzgibbons notes, this is a "power," not a "right." The difference between the two could not be wider.

By the same token, the Constitution gives the Senate the power to accept or reject that nominee. Republicans have said they will not approve anyone Mr. Obama nominates. We shall see.