Graham Warns President to Cooperate

Confirm Them blogged James Kuhnhenn of Knight Ridder Newspapers reports Senator Lindsey Graham of South Carolina is saying that the President “must cooperate” with the Senate:

Sen. Rick Santorum, R-Pa., said that on Supreme Court vacancies, the president should rely on his own counsel. But Sen. Lindsey Graham, R-S.C., one of the seven Republicans who signed the agreement, said the president must cooperate with the Senate.

The Constitution calls for advice and Consent; not Cooperation.

“I’m hopeful that we can get a Supreme Court nominee — it may come soon — through a collaborative process who would be a solid conservative,” Graham said.

If Lindsey expects the President to allow the Dems and RINOs in the group of 14 to dictate who the President nominates, he needs to rethink things.

“The next test for the body is the potential Supreme Court opening.”

A “collaborative process” is certainly not required by the Constitution. John Podesta and Mark Agrast of the liberal group Center for American Progress have acknowledged that fact:

In suggesting that the Senate may offer such advice at any time, even before the nomination has been tendered, we do not suggest that the Constitution requires this; only that it permits it.

Likewise, the deal signed by 14 Senators only “encouraged” the President to consult prior to making nominations — it did not “require” that kind of consultation. But now Senator Graham is reportedly requiring it, despite the clear language of the Constitution, which says that the President, “shall nominate, and by and with the advice and consent of the Senate, shall appoint” judges. The Constitution thus only requires advice after the President nominates, and Alexander Hamilton explained why.

Senator Warner has repeatedly assured everyone that the group of 14 Senators was simply trying to adhere to Hamilton’s plan as explained in The Federalist. For example, Warner said, “In no way is it our intent to … be inconsistent with the guidance provided by Alexander Hamilton in Federalist Paper 66….” And what did Hamilton say in Federalist 66?

Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.

Obviously, Hamilton foresaw that the Senate would advise and consent by majority, rather than allowing a minority to defeat nominations. Senator Graham appears to be demanding a collaborative process that Hamilton and the other Framers purposely avoided, while Graham threatens a supermajority vote that Hamilton and the other Framers disavowed. For example, here’s what James Monroe said at the Virginia Ratifying Convention:

He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS. (emphasis added)

Senator Graham is going way beyond not just what the Framers had in mind, but also beyond The Deal, which merely “encouraged” the President to consult more. Now Graham is reportedly demanding that the President consult in a way that the Framers warned against, while Graham warns of a supermajority vote if the President doesn’t cooperate.