Senator Portman is Within His Right to Forestall
 Columbus, OH РFormer Ohio Governor and current Ohio Senate Candidate Ted Strickland spoke inaccurately yesterday when insisting that the United States Constitution requires an immediate vote on an Obama Administration Supreme Court nominee.

His repeated assertions that the Senate has a “constitutional obligation” to confirm an Obama Administration nominee came in response to Ohio Senator Rob Portman indicating that it would be “wiser” to wait until after the presidential election.

In reality, the Senate has no such constitutional “obligation,” and further, forestalling Supreme Court nominations until after the presidential election is lawful, non-threatening, and entirely plausible:

  • Under Article II, Section 2 of the United States Constitution, confirmation by the Senate requires both “advice” and “consent,” and the Senate maintains no obligation to “consent.” There is no requirement to hold a vote, and no requirement to vote in favor of confirmation. In fact, Congress sets the very size of the Supreme Court, and could elect to permanently maintain an eight justice court.
  • Only 15 percent of Supreme Court cases are decided by one vote, meaning the maintenance of an eight-Justice-court fails to present a significant threat, especially since it is already too late for a new justice to participate in this term’s decisions.
  • President Obama cannot lawfully appoint a Supreme Court Justice through the “recess appointment” process. The Supreme Court unanimously rejected such a move in the 2014 case NLRB v. Noel Canning, finding that the President has no “recess appointment power” unless the Senate actually declares that it is in a recess (which it will not do here).
“Senator Portman is correct on this issue. There is simply no constitutional obligation to appoint an Obama nominee to the Supreme Court,” explained Maurice Thompson, Executive Director of the 1851 Center.
“And as to ‘wiseness,’ Ohioans should not forget how uniquely unqualified Mr. Strickland is to speak to the issue of democracy and the politicization of the courts: after losing Ohio’s gubernatorial election in November of 2010, he hastily disgraced the Ohio Supreme Court by appointing his running mate,¬†Yvette McGee Brown, to the high court at the eleventh hour of his governership (in January of 2011). Brown was summarily swept from office by Ohio voters at the next general election. Mr. Strickland’s other Supreme Court appointment, political crony Eric Brown, was removed from office just seven months after appointment.”
Of note to Ohioans, Strickland also mentioned his view that former Ohio Attorney General Richard Cordray should be appointed to the high court. However, much like the current occupier of that office, Cordray spent his entire tenure in Ohio attacking state and local businesses, rather than defending the state or federal constitutions or limiting government in any manner.