As we told you last week, the deal that averted the nuclear option encourages the President to consult with Senators of both parties before naming judicial nominees:
We believe that, under Article II, Section 2, of the United States Constitution, the word "advice" speaks to consultation between the Senate and the president with regard to the use of the president's power to make nominations. We encourage the executive branch of government to consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.
Such a return to the early practices of our government may well serve to reduce the rancor that unfortunately accompanies the advice and consent process in the Senate.
The President should take this advice. There are plenty of examples of how this “consultation” business can really work. Senator Orrin Hatch of Utah recently published a book in which he told the story of how President Clinton called him in 1993 to discuss possible nominees to the Supreme Court. At the time, Democrats were a majority in the Senate, so President Clinton could have just tried to bully any nominee through—but he chose to consult nonetheless. As Senator Hatch tells it, President Clinton suggested a person he had in mind, but Hatch told him that naming that individual could lead to a tough political battle. Senator Hatch then suggested the names of Stephen Breyer and Ruth Bader Ginsburg as less controversial choices. President Clinton took his advice, and both Justice Breyer and Justice Ginsburg were confirmed fairly easily. (Senator Patrick Leahy referred to these events in this letter to President Bush two years ago.)
Past Republican Presidents have also found real consultation quite handy. Republican President Gerald Ford consulted with Democratic Senators before naming Justice Stevens to the Supreme Court, with the result that his nomination was uncontroversial. (Former Deputy Attorney General Harold Tyler talked about this nomination in this press briefing by the Constitution Project.)
Our country’s Founders, former Presidents of both parties, and a bipartisan group of 14 Senators all agree: consultation and consensus are the way to go. Let’s hope President Bush listens.
