There They Go Again…

MYTH: ‘The Republican Party… Ignored The Constitution’

SEN. PAT LEAHY (D-VT) Today: “…[I]t was the Republican Party that ignored the Constitution, did not allow [Merrick Garland] to have a vote, and did not allow him to come before this body, and did not uphold the advise and consent oath and advise and consent.” (U.S. Senate, Judiciary Committee, Hearing, 3/22/2017)

FACT: SEN. LEAHY: ‘Power To “Consent” … Includes The Power To Withhold Such Consent’

Washington Post’s Fact Checker: “Three Pinocchios: … the Senate majority can in effect do what it wants... Democrats who suggest otherwise are simply telling supporters a politically convenient fairy tale.” (“Does The Senate Have A Constitutional Responsibility To Consider A Supreme Court Nomination?,” The Washington Post’s Fact Checker, 3/16/16)

U.S. CONSTITUTION, ARTICLE II, SEC. 2: “The President ... 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...” (“Constitution Of The United States: A Transcription,” U.S. Archives)

SEN. PAT LEAHY (D-VT): ‘The Constitution expressly speaks of the Senate's … power to ‘consent,’ which includes the power to withhold such consent’ “The Constitution divides the appointment power between the President and the Senate and expects Senators to advise the President, not just rubber-stamp his choices. In fact, for most of the Constitutional Convention the Founders had assigned the constitutional power to appoint judges exclusively to the Senate. Toward the end of the convention, as part of the system of checks and balances, the appointment power was shared between the Senate and the President. Shortly afterward, William Maclay noted this in his famous journal: ‘Whoever attends strictly to the Constitution of the United States will readily observe that the part assigned to the Senate was an important one - no less than that of being the great check, the regulator and corrector, or, if I may so speak, the balance of this government. ...’ The Senate's role in the process is not secondary and is not confined simply to a vote. The Constitution expressly speaks of the Senate's authority to ‘advise’ as well as the power to ‘consent,’ which includes the power to withhold such consent.” (Sen. Leahy, Remarks At The National Press Club, 6/25/03)

MYTH: ‘First Time In The History Of The United States, The Senate … Refused To Have A Vote’

SEN. PAT LEAHY (D-VT) Today: “…for first time in the history of the United States, the Senate refused to hold a hearing, refused to have a vote.” (U.S. Senate Judiciary Committee Hearing, 3/22/2017)

FACT: The ‘Senate Declined To Endorse The Principle That Proper Practice Required It To Consider And Proceed To A Final Vote On Every Nomination’ As Early As 1828

Washington Post's Fact Checker: “examples … tend to support the right of Republicans to handle — or not handle —this [Garland] nomination as they wish.” (“Does The Senate Have A Constitutional Responsibility To Consider A Supreme Court Nomination?,” The Washington Post’s Fact Checker, 3/16/16)

• Senate Precedents Go Back To At Least 1828: “In August 1828, Justice Robert Trimble died just as President John Quincy Adams was battling a tough reelection campaign against Democrat Andrew Jackson. Adams ended up losing to Jackson, but in December nominated Kentucky lawyer John Crittenden to replace Trimble. …Supporters of Jackson opposed this lame-duck nomination, leading to a debate of nine days on the floor of the Senate. Supporters of Adams’s maneuver argued that it was a duty of the president to fill vacant slots, even in the waning days of a presidency. They offered an amendment on the floor: ‘That the duty of the Senate to confirm or reject the nominations of the President, is as imperative as his duty to nominate; that such has heretofore been the settled practice of the government; and that it is not now expedient or proper to alter it.’ But this amendment was rejected in a voice vote and then the Senate voted 23-17 to adopt an amendment saying ‘that it is not expedient to act upon the nomination of John I. Crittenden.’ A few days after becoming president, Jackson nominated John McLean, the Postmaster General under Adams, to replace Trimble. … According to the Congressional Research Service, ‘By this action, the early Senate declined to endorse the principle that proper practice required it to consider and proceed to a final vote on every nomination.’” (“Does The Senate Have A Constitutional Responsibility To Consider A Supreme Court Nomination?,” The Washington Post’s Fact Checker, 3/16/16)