With the announcement of today’s resignation of Justice Sandra Day O’ Connor from the U. S. Supreme Court the President in his remarks, immediately following, stated that there would be no replacement announced before July 8, 2005.
 

The following is information sent out by the Republican Conference relating to the history of judicial appointments and how our Constitution gives the President the right to put forth his nominee, with the advice and consent of the U. S. Senate.

 

PRESIDENTIAL CONSULTATION WITH THE SENATE
DETAILED BACKGROUND
 

Consultation, Not Co-Nomination
 

• Everyone agrees that Senators may suggest nominees to a President. Sometimes Presidents agree with the suggestions and sometimes they do not. This White House has followed this practice.
• From the following comments, it is apparent that Senate Democrats are not content to follow the same practice as past Senates. They have claimed the right to co-nominate any judges:
  • Sen. Leahy declared that he “stands ready to work with President Bush to help him select a nominee to the Supreme Court.” Press Release, June 13, 2005.
  • Sen. Schumer has said that the President and the Senate should have “equal roles'' in nominating judges and has threatened “a battle royal” if the President fails to nominate someone who meets his approval. Letter from Sen. Schumer to the President (Apr. 30, 2003); Cong. Rec. S7208 (June 23, 2005).
  • Sen. Kennedy has threatened that the confirmation hearings will be “intensive and extensive” and marked by “time and effort and sweat and tears” if the President fails to nominate someone who meets his approval. Cong. Rec. S7205 (June 23, 2005).
     

The Constitution Does Not Require the President To Undertake Any Consultation
 

• The Constitution gives the right to nominate to the President – not the Senate Minority Leadership. Article II, section 2 states that the President “shall nominate” and the Senate shall provide “Advice and Consent.”
• Alexander Hamilton was the delegate at the Constitutional Convention who first proposed dividing the appointment power between the President and the Senate. Hamilton described his proposal as giving the Senate only “the right of rejecting or approving.”
• The other delegates seemed to understand the proposal the same way. As historian Joseph Harris explained, “The debates of the Convention indicate that ‘advice and consent’ was regarded as simply vote of approval or rejection. The phrase was used as synonymous with ‘approbation,’ ‘concurrence,’ and ‘approval,’ and the power of the Senate was spoken of as a ‘negative’ on the appointment by the President.” James Madison, Thomas Jefferson, John Adams, George Washington, John Jay, and James Monroe all agreed that the nominating power belongs to the President alone.
• Alexander Hamilton assured Americans that the Senate would have no power to nominate:
  • “In the act of nomination [the president’s] judgment alone would be exercised; and . . . it would be his sole duty to point out the man, who with the approbation of the senate should fill an office.” Federalist No. 76.
  • “It will be the office of the president to nominate, and with the advice and consent of the senate to appoint. There will of course be no execution of choice on the part of the senate. They may defeat one choice of the executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice, of the president.” Federalist No. 66.

Scholars Have Confirmed That the President Has No Duty To Consult

• Historian Joseph P. Harris concludes that “the power to nominate was given to the President alone.”
• Even those scholars who advocate greater Senate consultation agree that it is not required: “[T]he power to nominate rests with the President alone. We do not suggest that the nomination power is shared.”
   

The Senate Democrats Have Confirmed that the President Has the Right To Nominate Whom He Chooses
 

• Senator Joseph Biden, a former Judiciary Committee Chairman, has explained:
  • "[A]s a Member of the U.S. Senate, I am not choosing a nominee for the Court. That is the prerogative of the President of the United States, and we Members of the U.S. Senate are simply reviewing the decision that he has made.” Hrg. for Justice O’Connor 3-4 (Sept. 9, 1981) (opening statement of Sen. Biden)
• Senator Patrick Leahy, a former Judiciary Committee Chairman, has explained that the President is entitled to nominate someone of his choice, someone in the mold of Justice Scalia:
  • “And I think as members of the Committee, we should respect the mandate the president has earned. The president told us in 1980 and 1984 he would appoint judges of his philosophy. He was given a mandate to do that. This Committee, if the nominees are otherwise qualified, should respect that.” Meeting of Senate Judiciary Committee 69 (Aug. 14, 1986) (discussing Justice Scalia).
    
    

Presidents Throughout History Have Agreed that They Have Exclusive Power To Nominate
 

• Thomas Jefferson
  • “Nomination to office is an executive function. . . . By leaving nomination in its proper place, among executive functions, the principle of the distribution of power is preserved, and responsibility weighs with its heaviest force on a single head.” Letter from Thomas Jefferson to Samuel Kercheval, 1816 (quoted in Harris 36).
• FDR
  • There is a “difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate.” Pres. Franklin Roosevelt, Letter to Judge Roberts (Feb. 7, 1939).
  • “[N]o one – no Governor, no Senator, no member of the Administration – has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.” Pres. Franklin Roosevelt, Letter to Judge Roberts (Feb. 7, 1939).
  • “Presidents have decided on nominations in accordance with their best judgment – and in most cases basing their judgment on the character and ability of the nominee. In many cases, of course, the recommendations of Senators have been followed, but in many other cases they have not been followed by Presidents in making the nominations.” Pres. Franklin Roosevelt, Letter to Judge Roberts (Feb. 7, 1939).

• James Monroe
  • Monroe refused to allow a Senator from his own party to pick half of the nominees for positions in his state. He explained that it would amount to “a transfer of the right to nomination, vested by the Constitution in the President, to the Senators of the State.”
• James Madison
  • When the Senate “created a special committee to confer with the President” on a nomination for a foreign envoy, Madison refused. Harris 49. He told the Senate that he had no duty to confer with them:
    “the Executive and the Senate in the case of appointments to office, and of treaties, are to be considered as independent and co-ordinate with each other. If they agree, the appointments or treaties are made. If the Senate disagree, they fail.” James Madison, Special Message to the Senate (1813) (quoted in Harris 49).
• George Washington consulted widely, but insisted that the nominating power was his alone:
  • When the Senate passed a motion requiring that its “advice and consent to the appointment of officers should be given in the presence of the President,” Washington refused. Harris 29. Washington told the Senate that “the Acts of the President, and the Acts of the Senate will stand on clear, distinct, and responsible grounds. . . . the President has a right to nominate without assigning his reasons . . . .” Harris 39 (quoting The Writings of George Washington vol. XXX, 373-74 (John C. Fitzpatrick ed.) (Govt. Printing Office 1931-1944).
  • When then-Senator James Monroe counseled President Washington against nominating Alexander Hamilton as special envoy to Great Britain, “Washington sharply reminded him that the President alone was responsible for nominations and invited him to submit in writing any information that would disqualify Hamilton.” Harris 37. (Hamilton later declined the commission.)

Advice and Consent
 

• Everyone agrees that Senators may suggest nominees to a President. Sometimes Presidents agree with the suggestions and sometimes they do not. This White House, like other before it, has welcomed suggestions from Senators.
• But now some Senate Democrats have warned that if the President does not follow their “advice,” the confirmation process will be “intensive”, “extensive”, not “pleasant”, and may not have a “happy ending”. They are asserting a new right to choose the President’s nominees. The Constitution gives them no such power.
• In Federalist 66, Alexander Hamilton explained that: “It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice in the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose—they can only ratify or reject the choice he may have made.”
• Alexander Hamilton is the Founding Father who proposed the Constitutional system we have now – the President nominates, and the Senate votes to confirm or reject. He would know what his own provision means, and he explained that it meant that the Senate would not get to choose nominees.
• Each Senator will have the duty to determine whether the President’s nominee is qualified and fit for the bench. But the minority of this chamber cannot dictate to the President who he must nominate. Nor can we in the majority. Unless a majority of Senators can make the case that the nominee should be disqualified, the President’s choice is typically confirmed. This is so whether or not the nominee was the first choice of anyone in this body.
• It must be remembered that courtesy runs two ways. The Senate must also be courteous to the President’s nominee and not prejudge that individual. After all, the nominee receives a hearing, he’s not on trial.

The Need for a Full Court in October

• It is important that the Senate acts promptly so that we have a 9-member Supreme Court in October when the new term begins.
• Every Justice matters. Justices often change their minds based on their colleagues’ insights. No litigant should be deprived of the insights that an additional Justice would have brought to the case.
• It is vital to have the full range of views on the Supreme Court in light of the important issues that the Court will be visiting this fall:
  • Whether states can require a minor to notify her parents before having an abortion;
  • Whether the First Amendment protects job-related speech by government employees;
  • Whether universities may bar military recruiters from campus;
  • Physician assisted suicide;
  • The death penalty;
  • Whether prisoners can sue under the Americans with Disabilities Act;
  • When police can search private homes.
• Also, an 8-member Supreme Court might split 4 to 4 on a decision. If that occurs, the lower court’s decision would remain in place. We do not want the litigants to wonder whether the outcome of their case would have been different if the Court had been fully staffed.

Because split decisions let the opinions of lower courts stand, an 8-member Court could lead to a patchwork of law across the country, with Constitutional rights and protections varying widely from state to state.

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