It is presumably but days before President Obama goes before the cameras to do what presidents always do in nominating someone for an important position: giving us the name, describing why this person would be an admirable choice for the job, and introducing us to the nominee.
But this is not the usual situation, and what is extraordinary in this situation requires the president to deliver a speech that goes beyond what presidents usually do for this sort of occasion.
For while the President is doing what presidents have always done, the Republican-controlled Senate has declared its refusal to do what Senates have always done.
So instead of the usual process the Constitution calls for, the President faces a battle over whether the Republicans will honor that traditional process, or will reject it so as to cling to the power the loss of Justice Scalia would otherwise legitimately entail for them.
The president has already admirably articulated his intentions with regard to choosing a nominee (“A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”).
In that statement, he makes no mention of those who are making war on his rightful powers. But it is greatly to be hoped (though not all the signs are encouraging) that -as the responsibility gets passed to the Senate — the president will not shrink from the confrontation that has been thrust upon him.
For much is at stake in this battle the Republicans have forced upon the nation. It is a battle that must be fought and won, and one that is the president’s job, above all, to lead.
Here is what I’d have him say:
It is my pleasure today to introduce to the American people the outstanding person I am nominating to fill the vacancy on the Supreme Court.
But, unfortunately, before I get to that introduction, I need to talk about the threat that hangs over this confirmation process – and indeed over the integrity of our constitutional system – as a result of the announcement by the Republicans in the Senate that they will refuse to do what the United States has always done in this situation.
Never in the more than two centuries of this nation’s history has a Senate refused categorically to consider any nominee they receive from the person who is president when a vacancy opens up on the Supreme Court. Never.
You would think that genuine conservatives would be the last people to do the unprecedented, and to trample on long-standing American political norms and traditions. Aren’t real conservatives the people who are most likely to understand that the traditions are there for a good reason, and to hesitate to just sweep them aside.
There is no excuse – no valid justification – for what they are threatening to do.
It’s quite clear what the framers of our Constitution had in mind in setting up a system in which “The President…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court..” And until this moment, the United States Senate has always honored what the framers had in mind.
Yes, the Senate has on occasion rejected particular nominees, for one reason or another. But it has always ended up confirming a nominee from the president.
What they threaten, for example, is not like the Senate’s rejection of Robert Bork at the end of Ronald Reagan’s term. After the Senate rejected him (because they deemed him too far out of the mainstream of conservative jurisprudence), that same Democratic-controlled Senate confirmed another conservative judge nominated by President Reagan – Anthony Kennedy – by a unanimous vote, 97-0.
And this being the final year of my term of office is irrelevant, too. Democratic-controlled Senates have confirmed nominees from Republican presidents in the last year of their presidency three times just in recent decades.
Their unprecedented obstructionism – having no justification – stands exposed for what it is: a grab for power without regard for principle. This unprecedented obstructionism displays a lack of respect for our democratic system in which sometimes you win and sometimes you lose.
The Republicans have recently declared, in a public letter, that they will execute their “constitutional authority” to postpone filling this vacancy until – they hope – they can get their president in office.
I’m afraid “constitutional authority” is way too noble-sounding a name for what they are doing. No one believes that the framers of our Constitution intended for the Senate to use its role of “advise and consent” to nullify the president’s role of “nominate…and appoint.”
While the Constitution does not explicitly forbid this power grab, they are violating our American system nonetheless.
Not only is the sense of our founders about how the process should unfold quite clear here. But also, previous generations of American leaders have supported the Constitution by establishing traditions and norms to support the spirit of our founding document. The Republicans are transgressing against that spirit.
The Constitution does not and cannot forbid all kinds bad behavior; inevitably it must depend upon a healthy political culture, developed over the generations, being honored by the people in positions of responsibility.
Once again, we must marvel at how different is the conduct of these Republicans from what we have always understood to be the special strength of conservatives.
It has always been conservatives who have maintained that a good society is not just a matter of laws, that the laws have to be backed up by traditions and norms. The laws are the bricks that create our structures, but the norms and traditions are the mortar that hold it all together.
No, it cannot be said that these Republican Senators are using their “constitutional authority.” Rather, they are abusing their constitutional role of advise and consent.
There’s good reason why this Republican power grab is unprecedented: with their chiseling away at the mortar our forebears created to make our system of government work well for the nation – these Republican Senators are threatening to degrade the system of government that we have all taken an oath to protect, support and defend.
The Republicans have made their declaration. But that declaration is unacceptable, and I do not accept it. Neither should the American people. No one should be allowed to grab for power in a way that damages the system generations of Americans have fought to preserve.
I will insist that the Republicans relent and perform their duties as every other Senate in our history has done: play their proper role in the confirmation of a Supreme Court justice who has been put forward by the president whose job it is to nominate and to appoint. I will keep insisting until they fulfill their responsibilities, or until time runs out.
And I encourage my fellow Americans – liberal and conservative and in between – to speak out to insist likewise. If these Republican senators should persist in putting their own power above the integrity of our constitutional system, I will encourage the American people to impose on them the appropriate political cost, come Election Day.
And now that the Republicans have shown their hand, let me be clear about what is required of them. Given what they have told us about their intentions, we cannot be satisfied with their just going through the motions. They owe the nation more than a charade undertaken in bad faith, behind which they execute the same unjustifiable obstruction to protect their power at the expense of our constitutional order.
I will insist that, besides holding hearings and conducting a vote, they confirm a nominee who meets every legitimate criterion for the Senate to apply to a potential Supreme Court justice. And I have set about my responsibilities in this process to make sure I send to the Senate such an exemplary nominee.
I have previously expressed my determination to nominate someone who has “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works.” To which I will add: someone whose view of the law falls well within the American mainstream.
In other words, I have sought someone in whom the Senate will find no legitimate reason to refuse to confirm.
Which brings me to introduce to you, with great pleasure, …. who meets every legitimate criterion with flying colors.
[And then on to the nominee and his/her background/qualifications/character, etc.]