The President Is Not Due ‘His Due’

-By Frank Salvato

Over the course of the past several administrations we have heard from senators, political activists and media pundits that when a vacancy opens on the United States Supreme Court the Senate Judiciary Committee, and then the Senate as a whole, should allow the sitting president to have his nominee confirmed and seated to the bench. Many say that presidents “are due” the confirmation of their nominees. Truth be told, this is as far from what our Framers intended as can be fathomed.

Article II, Section 2, of the United States Constitution 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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law;…”

The process of seating a new justice to the Supreme Court of the United States (SCOTUS), as mandated by the US Constitution and intended by the Framers, sees the President nominating a person for the position of Supreme Court Justice and the Senate confirming the nomination through their advice and consent. Nowhere in the US Constitution is it intimated that a President’s nominee should be granted any inquisitorial latitude in any examination of character or qualification by virtue of nomination. Nowhere is it stated that a President should be granted the ascension of his nomination to the high court’s bench simply because he or she is the President’s preference.

Many judicial activists, Progressives and Liberals – and disappointingly, an increasing number of Conservatives and Republicans – are embracing the notion that because a President was elected to office a mandate exists allowing the President to shape the SCOTUS to his or her liking through the “rubber stamping” of the President’s nominee. This notion not only makes the confirmation process moot, it usurps, through abdication, the constitutionally mandated duty of the Senate to advise and consent through the proper examination of character and qualifications. In short, it is politics trumping the legitimate execution of constitutional government.

We should take a moment here to understand why it is important for an honest vetting of nominees to the SCOTUS to be executed.

A very elementary understanding of the American system of government provides us with the knowledge that it is made up of three co-equal branches of government; The Executive Branch, the Legislative Branch and the Judicial Branch. Each of these co-equal branches of government are – when unencumbered by the poisons of faction and politics – meant to provide a “check and balance” to the other two co-equal branches. In essence, each branch is meant to serve as a “watchdog” to the other co-equal branches, thus creating a triangulated system that provides for an adequate amount of oversight meant to thwart the corruption of each branch.

Where the nomination by a President of an individual to the SCOTUS satisfies the constitutional requirements set forth for the Executive Branch in the process, the Senate is required to examine and vet the nominee in order to satisfy the constitutional requirements set forth for the Legislative Branch. By members of the US Senate embracing and acting on the notion that a President is “due” the ascension of his SCOTUS nominee, the many Senators literally abdicate their duties to faithfully execute their sworn duty to satisfy Article II, Section 2 of the US Constitution; the many Senators are effectively violating their oaths of office to preserve, protect and defend the US Constitution by faithfully executing the duties of their offices.

This week, as the Senate Judiciary Committee set itself to examining the nomination of Elena Kagan – whose past actions, writings and statements evidence a person completely unfit to hold the position of US Supreme Court Justice (see: We Have to Talk About Elena Kagan ), we have heard from both sides of the aisle, from the pundits and from the Obama Administration itself, that no one expects the nomination to be challenged; that no one expects a filibuster of her nomination.

And while there seems to be a mounting discontent amongst the Senators over the vacuous and “dysfunctional” nature of the process – Kagan herself has, in the past, described the confirmation process as “vapid” and in need of “more discussion of the nominee’s views (although throughout her examination she spun like a whirling dervish) – the Senators show no signs of actually doing anything about the dysfunction.

John Cornyn (R-TX), whom I usually support and admire politically, made a statement, as reported by The Wall Street Journal , which appears to be the consensus of all the members of the US Senate:

“Sen. John Cornyn (R-TX), speaking outside the hearing room, called [Kagan] ‘soon-to-be-Justice Kagan.’ Asked if that meant she would be confirmed, he said, ‘I assume she will be.’”

In fact, over the course of the last several administrations, only two nominees have actually been rejected: Robert Bork and Harriet Miers , both nominees of Republican Presidents (one might ask why strict constitutionalists have been rejected for the position when the job of a Supreme Court Justice is to serve the US Constitution; and when Progressive and Liberal ideologues have been allowed to ascend unfettered by Conservative members of the Senate).

The danger in the Senate abdicating its constitutional duty to Article II, Section 2, is in that it allows for the placement of political ideologues on a governmental body that, in reality, is supposed to be academic. The US Supreme Court is the guardian of the United States Constitution and the Charters of Freedom and, as such, the members of the court should be exclusively loyal – almost to the point of jealousy – to not only the Constitution and the Charters, but the philosophies used to create the Constitution and the Charters of Freedom.

Article III, Section 2, states, in part:

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…”

This excludes – by mandate of the US Constitution – the consideration of any foreign law, antithetical political ideology or system of law that moves precedent away from constitutionality. It is the duty of those on the US Senate Judiciary Committee, and then the US Senate as a whole, to seriously and with purpose, examine and vet nominees to the Supreme Court for those who would not place the US Constitution, the Charters and our founding philosophies above all else. By abdicating this duty, Senators make vulnerable our very system of government.

Elena Kagan wrote in her Princeton thesis:

“…a coherent socialist movement is nowhere to be found in the United States…Americans are more likely to speak of…capitalism’s glories than of socialism’s greatness…the desire to conserve has overwhelmed the urge to alter…in a society by no means perfect no radical party has yet attained the status of a major political force…the socialist movement [had] never become an alternative to the nation’s established parties…”

Kagan described these developments as “sad” and “chastening” for “those who, more than half a century after socialism’s decline, still wish to change America.”

I ask you, dear reader, fellow American, is this the kind of person that you want protecting the United States Constitution and the Charters of Freedom? And why aren’t Republicans, Conservatives and constitutionally minded Democrats acting to stop the ascension of this Progressive Marxist sympathizer to the position of United States Supreme Court Justice? Why are Senators squaring off with Kagan over military recruitment practices at Harvard University during her tenure as Dean of Harvard Law when they should be ripping into her about her ideological love affair with Marxism and Socialism?

The answer is clear, an overwhelming majority of those elected to office place more value on their political parties and political longevity than they do on executing good constitutional government, honest service to their constituents and protecting the US Constitution.

Remember who “rubber stamped” this horrendous nominee to the United States Supreme Court come November of 2010 and 2012…then act accordingly.
Frank Salvato is the managing editor for The New Media Journal . He serves at the Executive Director of the Basics Project, a non-profit, non-partisan, 501(C)(3) research and education initiative. His pieces are regularly featured in over 100 publications both nationally and internationally. He has appeared on The O’Reilly Factor, and is a regular guest on The Right Balance with Greg Allen on the Accent Radio Network, as well as an occasional guest on numerous radio shows coast to coast. He recently partnered in producing the first-ever symposium on the threat of radical Islamist terrorism in Washington, DC. His pieces have been recognized by the House International Relations Committee and the Japan Center for Conflict. He can be contacted at

Copyright Publius Forum 2001