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February 17, 2016

According to the intellectual venues of conservative thought, The National Review and The Weekly Standard, here is the justification for the Senate refusing to perform its constitutional duty to offer its “advice and consent” to President Barack Obama’s nominee to succeed Supreme Justice Antonin Scalia:

“The Constitution doesn’t force us to do it! Neener neener neener!”

I was expecting something a little more respectable from the Review and the Standard, but it wasn’t there.  Rich Lowry of the Review protests the twisted view of the Left to “read Article II of the Constitution giving the president the power to appoint justices with ‘the advice and consent’ of the Senate as, in effect, an affirmative obligation on the Senate to consider and approve the president’s nominees.”

Over at the Standard Adam J. White produces his findings from research he did as a Harvard Law student which taunts Senator Chuck Schumer

Can you show me the clause that says the Senate must vote on, let alone confirm, a President's nominee?

I'll save him the effort: There is no such clause in the Constitution.

Perhaps there is an unexplored field in constitutional law: measures written into the Constitution that the Founders intended to be imbecilic. Are there other constitutional provisions placed in the document by our Founders which they intended for show but not to be operational?

Or are there constitutional provisions that are operational, but just not in the final year of a Democratic president? Should Obama have been banned from giving the State of the Union Speech? If the country should be attacked can Obama perform the duties of the commander-in-chief, or do we have to wait for the people to decide in the next election? I recognize that these powers are not conditioned on the advice and consent of the Senate, but since Senator Mitch McConnell is relying on an unwritten rule called the Strom Thurmond Rule (how delicious), it’s at least worth asking what other presidential powers are informally term limited.

Then there is the issue of what period Senator McConnell has in mind for the Thurmond Rule. If a Supreme Court vacancy occurred on January 19, 2016, would that be within the Thurmond Rule? How about December 31, 2015? It’s hard to know.

How about if the opening came up on January 21, 2013? Republicans didn’t like President Obama any more then than they do now. Could the Senate have simply waited the four years until the people spoke in a new election? After all, the Constitution does not say they have to vote.

Strict construction of the Constitution is more complicated than it may seem.  

Antonin Scalia, Mitch McConnell, Barack Obama

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