A quick note on Article II, Section 2 of the Constitution.

February 14th, 2016


Short Version

If you don’t want Obama’s nominee to fill Scalia’s seat, that’s fine — but focus on the Senate confirmation process instead of subscribing to the nonsense that Obama shouldn’t make any appointment in the first place. He actually has to make an appointment as part of his explicit job duties.

Longer Version

I seldom talk about politics here, but sometimes things are so illogical— independent of which party or politician they come from — that I feel the need to set down my thoughts.

There’s this absurd notion going around that President Obama should not nominate someone to fill the Supreme Court seat of the late Justice Scalia. It’s absurd because Obama is explicitly obligated to nominate a successor by Article II, Section 2, Clause 2 of the United States Constitution, which states:

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

It says “shall.” Obama actually must make an appointment . . . because the Constitution commands him to.

Now, you may not like whoever he nominates. That’s cool. The Senate may not approve his first nominee, or his second nominee, or any nominee. That’s also cool, in the sense that the Senate has that prerogative. (It wouldn’t be so cool from the standpoint of gumming up the works of the Supreme Court . . . but it’s still the Senate’s prerogative.)

But Obama — who still, for whatever it’s worth, has one-ninth of his Presidency still to serve — actually must make an appointment, or he’s not fulfilling the explicit duties laid out for him by the Constitution.

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