Jockeying begins for empty high court seat

When news broke that Justice Sandra Day O'Connor was retiring from the Supreme Court, special interest groups on both sides of the liberal/conservative divide jumped into action -- never mind that President Bush has not yet named an individual to fill that vacancy. Conservatives are worried that any individual that possesses a conservative bent will be Borked by the Senate Democrats, a process that the left is already gearing up for, if Ted Kennedy's recent opinion piece is anything to go by.

Liberals on the other hand are demanding that any prospective Justice gets their green light before the president nominates them, a procedure well outside the Constitution's meaning of "advise and consent." That phrase will probably be repeated ad nauseum for the next few months as both sides of the culture wars use it as a rallying cry.

Kennedy is using his own brand of logic in arguing that Bush has to negotiate his choice before making it. He says that during the Constitutional Convention the delegates first thought of giving the president no say in naming Supreme Court justices and that they settled on using a joint process to appoint justices. He goes from there to saying, "It means taking seriously the 'advice' part of 'advice and consent' by sharing the names of prospective nominees with the leadership of both parties in the Senate, the Judiciary Committee, and other senators who will fairly reflect the balance of views in the Senate and the country."

The trouble with Kennedy's argument is that while it is cunningly contrived, it is none the less, total nonsense. First of all, why should we give any weight to ideas discarded by the ones who conceived them? What does it matter that the Framers considered not giving the president any say in the choice of Supreme Court justices -- they didn't choose to implement that idea?

Secondly, the advise and consent doesn't come in until after the president makes his nomination known. In Article II, Section 2, the Constitution specifically states how such matters are to be handled "He 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..."

Notice that the president's power to make treaties is a joint one with the Senate but the power to nominate Ambassadors, other public ministers and consuls, along with the justices of the Supreme Court is his alone. Once a justice is nominated, then -- and only then -- does the advise and consent of the Senate come into play before the nominee can be appointed.

I may be picking nits but I think it is important that we have a firm grasp of the process the country is about to embark upon, otherwise chaos is sure to follow. That is one reason I believe the Constitution, as it is written, should be the final say in such matters.

The Constitution as a living document whose words change meanings with the seasons is, in effect, useless as a touchstone for deciding matters. Two people reading the same document would be at a loss as to it's true meaning.

Only if the Constitution's words are taken as written can it be a yardstick for the future. If future generations decide that it is outdated there is a method for changing the words to reflect modern sensibilities, the amendment process.

All that should be required of a prospective Supreme Court justice is whether they will decide the issues that come before them on the basis of the case's Constitutional merits. No foreign influence should be allowed, this is the United States of America -- not France.