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I wish that someone that supports Senator McConnell's position would come on here and answer the question: where does the Constitution state that the Senate has the power to not consider a Supreme Court nominee during 'election season'?
Not necessarily a fan of McConnell, BUT... The Constitution gives the Senate the power to "Advise and Consent" in regards to presidential nominations. Consider it the Senate's "advice" to the president to not make a nomination in an election year when he's a lame duck (Republican majority Senate and he won't be serving another term). They are perfectly fulfilling their Constitutional duty by doing so.
Not necessarily a fan of McConnell, BUT... The Constitution gives the Senate the power to "Advise and Consent" in regards to presidential nominations. Consider it the Senate's "advice" to the president to not make a nomination in an election year when he's a lame duck (Republican majority Senate and he won't be serving another term). They are perfectly fulfilling their Constitutional duty by doing so.
Yet, where do you get this interpretation of 'advice'?
From the Heritage Foundation, which examined this language back in 2005 (italics added by me):
"In requesting confirmation of his first nominee, President Washington sent the Senate this message: "I nominate William Short, Esquire, and request your advice on the propriety of appointing him." The Senate then notified the President of Short's confirmation, which showed that they too regarded "advice" as a postnomination rather than a prenomination function: "Resolved, that the President of the United States be informed, that the Senate advise and consent to his appointment of William Short Esquire. . . ." The Senate has continued to use this formulation to the present day. Washington wrote in his diary that Thomas Jefferson and John Jay agreed with him that the Senate's powers "extend no farther than to an approbation or disapprobation of the person nominated by the President, all the rest being Executive and vested in the President by the Constitution." Washington's construction of the Appointments Clause has been embraced by his successors. Some Presidents have consulted with key Senators and a few with the Senate leadership, but they have done so out of comity or political prudence and never with the understanding that they were constitutionally obliged to do so. A law setting qualifications would not only invade the power of the President, it would also undermine the authority of the Senate as the sole authority to decide whether a principal officer should be confirmed."
Yet, where do you get this interpretation of 'advice'?
Who doesn't know the meaning of advise/advice?
There is no requirement whatsoever in the Constitution for the Senate to have to take a vote on confirming or rejecting a presidential nominee. Sorry, it just isn't there.
"The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason.... As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination."
You're right that 'advice' doesn't technically apply to who the prez nominates. otoh, the Constitution doesn't create a timetable or procedure for the Senate to offer advice and consent to a nomination.
With a few small changes, Grassley could be accused of plagiarizing Biden's remarks to the Senate in 1992:
"Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution."
"The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason.... As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination."
You're right that 'advice' doesn't technically apply to who the prez nominates. otoh, the Constitution doesn't create a timetable or procedure for the Senate to offer advice and consent to a nomination.
We shall quote the entire paragraph (bolded added by me):
"The other principal controversy arising from the Appointments Clause has concerned the authority of the Senate to reject nominees. The Senate has independent authority in that it may constitutionally refuse to confirm a nominee for any reason. While ideology and jurisprudential "point of view" were not among the kinds of concerns listed by the Framers as justifying the requirement of advice and consent, nothing in the text of the clause appears to limit the kind of considerations the Senate can take up. It is thus reasonable to infer that the Framers located the process of advice and consent in the Senate as a check to prevent the President from appointing people who have unsound principles as well as blemished characters. As the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination."
The article had already established that the President has the absolute right to send a name to the Senate for consideration. The next paragraph, that you quote, proceeds to the next step: the authority of the Senate to reject nominees (the bolded part). I believe it is clear that 'accept', as described in the foregoing paragraphs, is being used in the sense of 'the Senate accepts (or confirms) the nominee' submitted by the president. Otherwise, the preceding discussion makes no sense. It would be silly for the author to establish that the President had the Constitutional power to submit a name for consideration, only to then, in the next paragraph, refute that finding by claiming that the Senate had the power to deny the President the power to even submit a name.
I believe that the late Justice Scalia would agree with the findings of the Heritage Foundation. Justice Scalia, as is well known, utterly believed that in interpreting the Constitution one looks to the original meaning of the words used by the Framers, and their original intent.
It is rather clear that President Washington, as well as Thomas Jefferson, Alexander Hamilton and John Jay, clearly believed that the President could not be 'advised' by the Senate to not submit any name for consideration. If that were the case, then all power for such nominations would be in the hands of the Senate, which would upset the checks and balances power the Framers attempted to establish.
Again, I have no problem with the Senate rejecting any such names submitted. In theory, they may do so until they have a President to their liking. Indeed, if Hillary Rodham Clinton were the next President, I suppose they could forestall for the next four years. It would not be wise, politically, but that is another subject.
The historical record supports that position: 14 presidents have appointed 21 justices during presidential election years.
A half-dozen presidents, classic lame ducks, filled Supreme Court seats even though their successors had been elected.
Uh huh... and THIS PRESIDENTIAL AND CONGRESSIONAL ELECTION RESULT is exactly why McConnell was 100% correct! The public has spoken.
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