Lankford: Constitution Says, 'The President Shall Nominate,' But It Doesn't Say Senate 'Shall Give Consent'

By Lauretta Brown | March 10, 2016 | 6:38 AM EST

Sen. James Lankford (R-Okla.) (AP File Photo)

( – Sen. James Lankford (R-Okla.) says the Senate should wait to fill the vacancy left on the Supreme Court by Justice Scalia’s passing. “With only months left until the Presidential election, we should let the people decide,” he said in a speech on the Senate floor Wednesday morning.

Lankford displayed the text of Article 2, Section 2 of the Constitution, which reads in part: The president “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he 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.”

"The president shall nominate," Lankford repeated. "That is his responsibility. But that only moves forward with the advice and consent of the United States Senate. There's no 'shall give consent.' There's no requirement of how it moves."

Lankford also argued that elections have consequences: "The American people elected a brand new Senate in 2014 because of their incredible frustration with the operation of the previous Senate and because of the direction that we’re now heading under this president.”

Lankford said he's heard “overwhelming” hyperbole in the recent debate surrounding the high court vacancy.

“I have heard that unless we replace Justice Scalia right now, we will shut down the court,” Lankford said. “I have heard on this floor people call that if we don't replace Justice Scalia immediately, it’s dangerous, it is unprecedented, it’s unheard of. I have heard, 'Do your job.'"

Lankford quoted then-Sen. Joe Biden, who said in 1992: "It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over."

Lankford also highlighted contradictory statements from Senate Majority Leader Harry Reid (D-Nev.):

Just a few days ago, Reid wondered, “Why is Senator Grassley debating what the Constitution makes clear? The Senate must provide its advice and consent on nominees appointed by the President to the Supreme Court.” Reid said Senate Judiciary Chairman Chuck Grassley (R-Iowa). "wants to throw out the Constitution just because President Obama gets to pick Scalia’s replacement.”

Lankford then quoted a 2005 statement by Reid on President George W. Bush’s nominations.

“The duties of the United States Senate are set forth in the Constitution of the United States. Nowhere in that document does it say the Senate has a duty to give presidential nominees a vote,” Reid said at the time. “It says appointments shall be made with the advice and consent of the Senate. That is very different than saying that every nominee receives a vote.”

Lankford said he's not sure what to make of Reid's two statements, "because they're in direct contradistinction.”

Lankford said the Senate will not allow President Obama to make a recess appointment, in which case, the new justice would serve only until the end of Obama's term: "We can remain in continuous session without recess to prevent a recess appointment by this president through the rest of this year.”

“Ironically enough,” Lankford pointed out, “this right of the Senate was just affirmed by the Supreme Court just a few years ago by a 9-0 ruling when this president tried to force in new members of the National Labor Relations Board (NLRB) through a recess appointment.”

Lankford was referring to the High Court’s June 2014 ruling that Obama “lacked the authority” to make those NLRB appointments in 2012.

 “This is a moment when the people of the United States should speak about the direction of our nation. We are still a nation of the people, by the people, for the people,” Lankford concluded. “And for the next president and for the next Supreme Court nomination, we should let the people decide.”

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