The March 17 editorial “Constitution being ignored,” regarding the nomination of Judge Merrick Garland to the Supreme Court, misreads the Constitution. The relevant passage from Article II regarding the powers of the president reads as follows (ellipses for brevity): “He shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.”
Note that in no sense is the Senate obliged by these words to do anything. An earlier draft of this section did place a positive burden on the Senate to hold a vote, but that was expressly removed in the final document, thus the power of consent is at the absolute discretion of the Senate. And it may, if it chooses, confirm, reject or ignore the president’s nomination.
Given that the modern Supreme Court has morphed from its original judicial purpose to become a kind of super legislature (at least in the minds of “progressives”), it is utterly appropriate for the Senate to wait until after the election to bring any nomination forward.
If you seek to know why, just look up the work “borked” in your dictionary. It is a shameful episode, indeed, and one that will continue to bedevil the body politic until such time as judges resume being judges, bound by the law rather than by any personal views they might hold.
