Posted by Randy Barnett:
Senatorial Deference to the President's Supreme Court Picks?
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247678274
Over on The Right Coast, Mike Rappaport asks [1]Is the President
Entitled to Deference on His Supreme Court Nominees?:
Yes, say many right wing legal commentators. But the question is
why? It is sometimes said that the Constitution gives the President
the decision of which person to nominate and therefore the Senate
should defer to that decision. But that seems mistaken. The
Constitution also assigns to the Senate the role of advising and
consenting to the nomination. Why does the Senate have to defer as
to whether to consent? There is nothing in the Constitution about
deference.
Another argument is that if the President does not get deference,
there will be long and contentious nomination proceedings. Well,
that might be, but so what. There are both benefits and costs to
such proceedings, and the benefits include educating the public
about the Supreme Court. Moreover, this argument begs the question.
The President could avoid contentious proceedings by nominating a
more moderate person. Why should the Senate have to defer rather
than the President?
It is true that the Constitution assigns the President the first
move -- he nominates and the Senate must respond. But that does not
require the Senate to defer. It merely means that the Senate's job
is to judge the person that the President has nominated and to
determine whether that person is fit. But that does not suggest
that they must defer to his choice. If they determine that his
choice is unfit, then they can and should oppose. To put it
differently, that the President nominates makes it difficult for
the Senate to oppose that nominee because they would have preferred
someone else. But it does not preclude the Senate from opposing the
nominee because he or she fails to satisfy standards of fitness
that the Senate believes to be applicable.
Finally, there is a significant problem with requiring senatorial
deference. It allows the President to select nominees who are
strongly disposed towards executive power. Senatorial deference
might therefore lead over time to a court that is biased towards
the executive. By contrast, requiring the President to compromise
with the Senate would lead to a more even handed selection of
justices.
And neither should the judiciary adopt a "presumption of
constitutionality" by which it defers to the opinion of Congress that
its statutes are constitutional. The judiciary, like the President, is
a separate branch of government entitled to make its own independent
assessment of whether or not an act of Congress is constitutional.
Of course, if Senators reject one nominee, they will then confront a
second nominee, who may be no better, and may well be worse, from the
perspective of the objecting Senators. They should, and likely always
will, take this next move by the President into account when deciding
whether to oppose a nominee. Readers who think Republicans should
defeat Judge Sotomayor, if they had that power, should ask whether
they are likely to be more or less happy with President Obama's
subsequent nomination.
References
1.
http://rightcoast.typepad.com/rightcoast/2009/07/is-the-president-entitled-to-deference-on-his-supreme-court-nomineesmike-rappaport.html
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