July 25, 2011

Wisconsin Senator Ron Johnson is unconstitutional

Deep commitment to separation of powers inconvenient in this case

Seven conservative lawyers, including Governor Scott Walker's choice to head up his own judicial selection committee, are complaining about a Journal-Sentinel editorial, and misconstrue the U.S. Constitution.

The subject editorial criticizes Wisconsin Republican Senator Ron "Sunspots" Johnson for obstructing the president's power to nominate federal judges, as this space had done previously here and here.

Article II of the Constitution describes the president's powers along with those powers he (it says "he") shares with Congress. Where it comes to federal judicial vacancies, the president has two separate powers: the power to nominate, and the power to appoint. The appointment power he shares with Congress. The nominating power he shares with nobody.

In order to facilitate the nominations in Wisconsin's federal jurisdictions, the State's two Senators instituted a commission to solicit and review applicants, and then make its recommendation to the president. The Constitution does not require the commission, but nor does it forbid it.

The commission is purely a courtesy.

The Constitution places no restrictions on the president's nominating power, and is silent on the matter of how the president goes about discovering a suitable nominee. The present vacancy in question, on the U.S. Court of Appeals for the Seventh Circuit in Chicago, was notified in July, 2009. By November the commission had made its recommendation. The president is not bound by the recommendation, and in fact he can ignore it altogether and nominate somebody else. Say the lawyers:
The nomination was apparently placed on Johnson's desk two days after he took office, in disregard of a senator's duty of "advice and consent" under Article II section II of the U.S. Constitution.
This is a remarkable complaint, coming from these seven experienced attorneys — led by a former judge — because there is absolutely no constitutional basis — read: legal basis — for it. Moreover they don't even know whether they can support the factual bases for their complaint, and acknowledge that "the White House may dispute [our] account."

I should say so.

The president's nomination power is plenary, so the president can put whatever she/he wants on Johnson's desk, whenever he/she wants (assuming there's a judicial vacancy, which there was). The president makes the appointment with the advice and consent of the Senate.

And not with the advice and consent of Ron Johnson. But Johnson has had his say, and in fact used it to say nothing at all, except to complain about his own personal woes, having nothing to do with the nominee.

Ron Johnson, who ran on a devotion-to-the-Constitution platform — despite barely having read the damn thing — should appreciate that, regardless of the establishment and formation of the nominating commission, no such commission is any requirement of the Constitution.
Some of [Victoria Nourse's] supporters now rush to point fingers and assign blame to a senator who just wants to be heard and fulfill his constitutional duty of "advice and consent."
Aw. Poor Ron Johnson. And they call this an argument?

How can he fulfill that duty in the first place if he's preventing Nourse from getting a hearing before the Senate? There is no constitutional "duty" of Johnson's to vet the president's nominees, nor is there any constitutional "duty" of the president's to run nominations by Johnson.

Ron Johnson's duty is to stand aside and release his unconstitutional hold on the nomination and let the appointment process proceed. Then he can come up with some substantive reason (Advice) and then provide or withhold his Consent by voting along with the Senate. The Constitution isn't as difficult to understand as Ron Johnson says he found it to be.

However, its provisions appear to elude some FedSoc disciples. It's amazing such a fundamental first principle got by seven lawyers. Seven.
[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ...
The president shall nominate. Comma.* And appoint. Discrete powers.

And the president did exercise his nomination power. Now Ron Johnson seeks to intermeddle in the nomination, and indeed to intermeddle ex post facto. Ron Johnson hasn't the power to do so, and what Ron Johnson is doing is unlawful and in clear violation of the Constitution.

Why are these lawyers — who should know better — egging him on?

* Not even a forward slash.


Anonymous said...

Think of the lawyers as acting more along the lines of script writers than as attorneys. Facts get in the way of a good story.

illusory tenant said...

Still, they don't quite top Ellen Nowak (another Walker appointee).