Still The President: Garland, Kavanaugh, Trump

When, afterward the decease of Justice Scalia inward Feb of 2016, President Obama nominated Merrick Garland to the Supreme Court, Senate Republicans took the lay that because Scalia had died inward a presidential election year, the selection of the adjacent Supreme Court justice should survive made past times the adjacent President. They thus refused to function along amongst whatsoever consideration of the Garland nomination. Senate Republicans claimed their lay had aught to produce amongst Obama or Garland but rather they were simply adhering to a longstanding tradition of non considering Supreme Court nominees inward an election year. As Rob Kar in addition to I showed, however, at that spot was no such tradition. Indeed, the tradition supported consideration of the Garland nomination. And, on the merits, nosotros said, at that spot was no constitutional footing for asserting a ability (or duty) to divest a sitting President of his authority, nether Article II, department 2, to “nominate . . . judges of the Supreme Court.” Influenza A virus subtype H5N1 President inward his in conclusion yr inward role is soundless the President amongst all of the powers Article II gives him.

Here nosotros function again.

Some Senate Democrats (who, 2 years ago, themselves complained almost the trend their Republican colleagues were treating Obama in addition to Garland) enjoin that consideration of Brett Kavanaugh to supplant Justice Kennedy must survive delayed until afterward the determination of the Mueller investigation. Their declaration is that President Trump mightiness possess got engaged inward criminal behave and, if so, he should non survive choosing Supreme Court justices peculiarly given that the Court mightiness survive asked inward the futurity to dominion on an resultant (for example, tin reach the sack a sitting President survive indicted?) involving Trump himself. This declaration should survive soundly rejected.

Under Article II, at that spot is “a President” who, unless removed from office, resigns, dies or becomes incapacitated, serves a fixed “term of 4 years.” During that “term,” the President “shall possess got Power” equally defined past times the Constitution. Influenza A virus subtype H5N1 President nether investigation, indicted, in addition to fifty-fifty (if it comes to it) convicted past times a lawsuit courtroom is soundless the President. Indeed, a President impeached past times the House of Representatives in addition to fifty-fifty on lawsuit past times the Senate is soundless the President. Even if at that spot is a existent alive other soul waiting inward the wings—a Vice President who would possess got role if the President is removed, for instance, or the winner of a presidential election awaiting inauguration—the powers of the sitting President are non reduced. We don’t designate somebody else (a decorated General, for instance) Commander-in-Chief because the sitting President is or mightiness survive on his trend out the White House door. Presidential powers are vested inward i role amongst i office-holder.  

To survive sure, the Senate has a skilful bargain of discretion inward choosing how to perform its constitutional duty of advice in addition to consent. But the notion that a nomination past times the sitting President is somehow defective or should survive laid aside or tracked differently because of the status of the nominating President (he is inward his in conclusion months of office, he is nether criminal investigation, he mightiness survive removed) has no constitutional basis. Under the Constitution, the President has exactly i status: President.