No President "entitled" to appoint
any SCOTUS Justice he wishes

by Alan Keyes

Every day brings some new evidence that even people who are supposed to be conservatives are unable or unwilling to think through rudimentary features of the Constitution.

Today I for example I came across this declaration in a commentary piece at WND. The commentator wrote “I am not pleased to see Sonia Sotomayor or Elena Kagan sitting on the bench, but I would have voted to approve them. That’s because I believe the president is entitled to appoint whomever he wishes, whether it’s Ruth Bader Ginsburg or Robert Bork.”

As I read this what came to mind was a word from the idiom of ancient Greece that was used to refer to something that is strictly private. With reference to opinion, it suggested a statement or view showing a lack of common sense and understanding, or a failure to take account of public rules or standards of thought and behavior. Obviously, it came to mind because the WND commentator’s statement fails to consider the public purpose of the constitutional provision that requires Senate confirmation of appointments to the Supreme Court.

If the president is entitled to appoint whomever he wishes, why did the Framers of the Constitution include this provision? Is confirmation just a silly waste of time? Or does it serve a profoundly necessary purpose?

According to the Constitution, the President of the United States is not entitled to appoint whomever he wishes. He must literally take account (also, a count) of the wishes of the members of the U.S. Senate. Today the Senators represent the States. Prior to passage of the 17th amendment (in my view a grave error), the Senators more specifically represented the State governments, which is to say the institutions that focus and embody the sovereignty of the people in their states.

Suit cannot be made against sovereign entities against their will without risk to public peace. In cases in which a state is a party, the Constitution assigns original jurisdiction to the Supreme Court. In the interest of domestic tranquility, therefore, it makes sense to require consultation with the states when choosing the individuals that comprise the Court.

The confirmation process is therefore no mere formality. It is intended, among other things, to encourage among the states greater acceptance of, and trust in, the decisions of the Supreme Court. But it will only do so if the Senators take seriously their responsibility to represent the constitutional interests of their respective states. If they treat judicial appointments as some kind of presidential entitlement, they intentionally fail in this responsibility. Their inattention sets the stage for both the executive and judicial branches of the U.S. government to fall into the habit of disregarding or trampling on the sovereign powers and prerogatives the Constitution leaves to the states, respectively and to the people.

These days we are witnessing the kind of dangerous abuses and usurpations this produces. Anyone who believes in the republic established by the U.S. Constitution should be working to end these abuses. Among other things, this involves insisting that Senators remember their responsibility to supervise and constrain judicial appointments so that they contribute to the restoration of constitutionally mandated federalism, rather than its further destruction.