The Parent/Child Relationship Between the Executive and Legislative Branch

When I was growing up, I had two friends that lived within 5 miles of my house. We will call them John and Steve.

Steve was a bit of a bad influence on me, he liked to use unsavory words, encouraged me to watch pornography (at the ripe age of 13 years old), and I’m pretty sure he was smoking marijuana.

John, on the other hand, was a great guy- and still is to this day! His parents were good people. I distinctly remember a day that I used a cuss word and John’s parents said I could not spend time with him anymore unless I stopped using such words. I never cussed again because of his parents.

My parents loved John and liked it when I hung out with John. They didn’t care for Steve because they knew what was going on.

I like to think of the balance of power in the Federal Government in this way. Who is the adult and who is the child? In the case of acts of terrorism (such as the attack on the Twin Towers), the president is the adult who says, “It’s time to go punch Steve” and Congress is the child who says, “Wait, lets talk about this”. The president, generally, gets to overrule such engagements because it is his job to protect the country (Article 2, Section 2, Clause 1 of the U.S. Constitution).

In the case of the death of Supreme Court Justice, Antonin Scalia, the President is the child and the Senate is the adult. 

The U.S. Consitution, Article 2, Section 2, Clause 2, (referred to as the “Advice and Consent Clause”) states:

“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, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

This means that the Senate gives advice and consents to the nominations of the President. In my case, I would ask my mom if I could go play with Steve, and my mom would say “Yes” or “No”. My mom plays the role of Advice and Consent.

That being said, here are the main points you need to know regarding the SCOTUS appointment decision.

1. The President has the Constitutional authority to nominate a justice to the Supreme Court. 
2. The Senate has the Constitutional authority to deny a nomination to the Supreme Court.
3. Congress has the Constitutional authority to determine how many Supreme Court justices will preside over the Supreme Court. There have been as little as 6 justices and as many as 10. This right was established by the Judiciary Act of 1789.
4. The longest vacancy on the Supreme Court was 27 months. Zachary Tyler, of the Whig party, had a record 8 rejected Supreme Court nominees during this 27 month period. President Obama has 11 months left in office.
5. The president can appoint a Supreme Court Justice while Congress is in recess. Republican President, Dwight D. Eisenhower, made 3 such appointments.
6. In 2007, Democrats said that no George W. Bush nominee would be approved (19 months before his term would end). Mitch McConnell was opposed to such sentiment, he is currently singing a different tune.
7. Senator Obama tried to filibuster Bush’s Supreme Court pick (Justice Samuel Alito, confirmed 58-42) on the premise that his pick was “a bad addition to the Supreme Court”.

(For more fun facts regarding SCOTUS, check here and here)

I would like to respond to the beloved John Oliver and Mitch McConnell, who both cite the “Thurmond Rule” as the reason why the Senate does not want to appoint a Supreme Court Justice. I respectfully disagree with this premise. The Thurmond Rule, an informal concept created by the late SC Senator, Strom Thurmond, states that no president should be allowed to make a lifetime appointment to the bench within the last six months of his term.

The knowledge alone that Obama has 11 months left makes this rule null. The premise for denying a Supreme Court Justice is simply Article 2 of the Constitution, whereby the Senate has the right to Advise and Consent.

Final Thoughts
The Constitution was written to handle the balance of power. Our forefathers beautifully drafted this document to prevent any one party from having too much power. And, in the event that one party does obtain a lot of power, it will be at the sole will and discretion of the people of the United States of America.

President Obama was elected in 2008 and 2012 to preside over the United States as the single most powerful man. The American People declared resoundingly that they wanted a Democrat. In 2014, the American People back-peddled and elected a majority Republican House and Senate. In this moment, we declared that we wanted a Republican. As Obama is attempting to nominate a Supreme Court Justice, the Republican Party has the authority to and can stop it. And if they do, it will be because that was what the people wanted when they voted Republican in 2014.

If you disagree with the President, then vote Republican come next election.
If you disagree with the Senate, then vote Democrat come next election.

It is as simple as that.