Leahy to Bush: 'Follow What the Constitution Says'

By Jeff Johnson | July 7, 2008 | 8:29 PM EDT

Capitol Hill (CNSNews.com) - Sen. Patrick Leahy (D-Vt.) suggested Wednesday that President Bush would be violating the U.S. Constitution if he names a nominee to the Supreme Court without first consulting with Senate Democrats.

"Along with Senator Daschle and other Senate Democrats, I have asked the president to consult with leaders in the Senate on both sides of the aisle in advance of any Supreme Court nomination," Leahy said during prepared remarks at the National Press Club.

"What I'm trying to do is make sure we don't have [an] extreme nominee to the Supreme Court," he added later. "That is why I have suggested that the president follow what the Constitution says to do."

Leahy suggested the document that shapes the nation's government provides equal authority to both the president and the Senate in choosing nominees to the federal courts.

"The Constitution divides the appointment power between the president and the Senate and expects senators to advise the president, not just rubber-stamp his choices," Leahy insisted. "The Senate's role in the process is not secondary; not confined simply to a vote."

Sen. John Cornyn (R-Texas), chairman of the Senate Judiciary Subcommittee on the Constitution, disagrees.

"Though much is made of the word 'advice,' the 'Advice and Consent' clause establishes only that the Senate's approval is necessary, but not sufficient, for the president to appoint an individual," Cornyn said Wednesday. "Similarly, the Senate's approval is necessary, but not sufficient, for the president to ratify a treaty."

The portion of Article II Section 2 Clause 2 of the Constitution that relates to judicial appointments states: "he [the president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for..."

Cornyn believes the plain language of Article II limits the Senate's "Advice and Consent" role to confirming nominees after they have been chosen and announced by the president. Democrats' contrary interpretation, he said, is the source of "the current obstruction faced by judicial nominees," including Texas Supreme Court Justice Priscilla Owen and former Assistant Solicitor General Miguel Estrada, both nominated to the U.S. Circuit Courts of Appeals and both being blocked by a minority of senators, all Democrats.

"'Advice and Consent' in the Senate has devolved to 'Demand and Obstruct,'" Cornyn said. "Although I agree the judicial confirmation process is broken, I don't believe the answer is to politicize it further by handing over control of the process for selecting Supreme Court justices to individual members of the Senate."

A former Texas Supreme Court justice and attorney general, Cornyn believes attempts by Leahy, Daschle and New York Democrat Charles Schumer to insert themselves into the nominations process "threaten to further disrupt rather than solve" the ongoing problems.

"These obstructionist activities continue to undermine the constitutional principles of judicial independence and majority rule," Cornyn said. "Few things concern me more than the threat of politics interfering with our courts and our system of justice, including our system for selecting judges to serve on the federal bench."

Cornyn wrote the White House on June 17 to offer his support for President Bush's view that it is his role to nominate and the Senate's role to provide or withhold consent for judicial nominees.

"As president of the United States, you of course are free to consider suggestions made by any member of the Senate, or indeed by any American," Cornyn wrote. "To the extent, however, that Senators Leahy and Schumer intimate that either the Constitution or Senate tradition establish a special role for individual senators in the process of selecting Supreme Court justices, they are mistaken."

Cornyn also recently sponsored Senate Resolution 138 (S. Res. 138), which was passed by the Senate Rules and Administration Committee Tuesday, to reduce the number of votes required to break the filibuster of a judicial nominee by three each time a subsequent cloture motion is filed. On the fourth such vote, 51 senators could "invoke cloture," ending debate within 30 hours and forcing a confirmation vote on the nomination.

As CNSNews.com previously reported, the full Senate must vote on the resolution before it can take effect. Rules changes require only a simple majority of 51 votes to pass, but opponents can filibuster the resolution under a special rule that would let only one-third of the senators block a vote on the proposal.

Leahy said Wednesday that "the choice of uniting or dividing the American people over a nominee" is left to President Bush.

"If the president wants to incite a confirmation battle, then he can choose someone because of their ideology or record of activism in the expectation that there will be a political nomination, and they will bring about political victories," he said.

Leahy did not, however, deliver the next line of his prepared text, which read: "If he chooses that course, the president will have done so knowing full well that he is starting a confirmation confrontation."

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