Mark Kirk Breaks with McConnell, Citing Duty to ‘Constitution’ over ‘Party’

[Valin]

National Review/The Corner:

Elaina Plott

February 22, 2016

 

After a week of silence on whether Republicans should refuse to consider President Obama’s Supreme Court nominee, Senator Mark Kirk is speaking out.

 

In a Chicago Sun-Times op-ed posted moments ago, Kirk argues that, in the spirit of honoring the late Justice Antonin Scalia, Republicans should place the Constitution before their party.

 

“I recognize the right of the President, be it Republican or Democrat, to place before the Senate a nominee for the Supreme Court and I fully expect and look forward to President Obama advancing a nominee for the Senate to consider,” he writes.

 

“I also recognize my duty as a Senator to either vote in support or opposition to that nominee following a fair and thorough hearing along with a complete and transparent release of all requested information. The Senate’s role in providing advice and consent is as important and significant as the President’s role in proposing a nominee.”

 

By the same token, he urges the president to put forth a nominee who rejects partisanship and extremism.

 

(Snip)

 

_________________________________________________________________________________________________

 

Says the guy losing to Tammy Duckworth

[kevindavis]

I'm so embarrassed that I voted for him.

[righteousmomma]

http://www.heritage.org/constitution/#!/search/President++appointm/articles/2/essays/91/appointments-clause

 

This clause contemplates three sequential acts for the appointment of principal officers—the nomination of the President, the advice and consent of the Senate, and the Appointment of the Official by the President. This clause applies to principal officers in contradistinction to inferior officers, whose appointment is addressed in the next portion of the clause. Although the Senate must confirm principal officers, including Ambassadors and Supreme Court Justices, Congress may choose to require that any officers whose office is "established by Law" be confirmed by the Senate, whether they be inferior or not.

The important questions for principal officers and their confirmation are, first, whether the President has plenary power of nomination or whether the Constitution limits this power by requiring the President to seek prenomination advice; second, whether the President must nominate only those who meet qualifications set by Congress; and, third, whether the Senate has plenary power to reject nominees or whether that power is circumscribed by some standard.

Both the debates among the Framers and subsequent practice confirm that the President has plenary power to nominate. He is not obliged to take advice from the Senate on the identity of those he will nominate, nor does the Congress have authority to set qualifications for principal officers. The Senate possesses the plenary authority to reject or confirm the nominee, although its weaker structural position means that it is likely to confirm most nominees, absent compelling reasons to reject them.

The very grammar of the clause is telling: the act of nomination is separated from the act of appointment by a comma and a conjunction. Only the latter act is qualified by the phrase "advice and consent." Furthermore, it is not at all anomalous to use the word advice with respect to the action of the Senate in confirming an appointment. The Senate's consent is advisory because confirmation does not bind the President to commission and empower the confirmed nominee. Instead, after receiving the Senate's advice and consent, the President may deliberate again before appointing the nominee.

The purpose of dividing the act of nomination from that of appointment also refutes the permissibility of any statutory restriction on the individuals the President may nominate. The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny. Hence, following the suggestion of Nathaniel Gorham of New Hampshire and the example of the Massachusetts Constitution drafted by John Adams, the Framers gave the power of nomination to the President so that the initiative of choice would be a single individual's responsibility but provided the check of advice and consent to forestall the possibility of abuse of this power. Gouverneur Morris described the advantages of this multistage process: "As the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security."

The Federalist similarly understands the power of nomination to be an exclusively presidential prerogative. In fact, Alexander Hamilton answered critics who would have preferred the whole power of appointment to be lodged in the President by asserting that the assignment of the power of nomination to the President alone assures sufficient accountability: