March 25, 2016

DEANS MINOW AND TACHA SAY OBAMA HAS A DUTY TO NOMINATE A SUPREME COURT JUSTICE, but that’s not what Chief Justice Marshall said. And here’s what Bill Clinton’s Justice Department said: “The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”

Thus, says Seth Barrett Tillman: “In short, for over two centuries, the received wisdom—based on the highest legal authorities—has been that the President has no duty to nominate anyone to a vacant office, and the Senate has no duty to consider any of the President’s nominees. Why Deans Minow and Tacha would assert otherwise is a mystery.”

Well, it’s not exactly a mystery. . .