Thursday, April 7, 2016

Supreme Court Nominations and the Constitution

Must the Senate Consider a President’s Supreme Court Nominee?

No.  The Constitution grants the President the power to nominate Supreme Court Justices, but he can only appoint them if and when the Senate consents -- and there is no obligation requiring the Senate to take action. 

Article II, Section 2, states in relevant part as follows:  “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court . . . .”  Notably, the word "shall" applies to the President's nomination and appointment powers, which makes them obligatory, but the term is not used for the Senate's advice and consent power.