There are several articles currently out about Sen. Daschle's proposal that the President consult with the Senate before making nominations for judicial office, and the President's response.
White House press secretary Ari Fleischer called the idea 'a novel new approach to how the Constitution guides the appointment process.' The Constitution gives the president sole power to nominate Supreme Court justices, subject to confirmation by the Senate, he stated, and the proposal would not comply with its requirements.
The idea of advance consultations is indeed novel, but only because it is not and has not been done that way. Fleischer mischaracterizes the provision of the Constitution. The provision, found in Article II, Section 2 says:
"He shall nominate, and by and with the advice and consent of the Senate, shall appoint. . . judges of the Supreme Court"
The phrase used is "advice and consent", not simply "consent". The Constitution does not simply give the Senate the right to say yea or nay to the President's choice. It provides for "advice" as well as "consent". How that is to be structured and carried out is of course a political decision, and over the years the "advice" part has been limited to consultations with (and the blue-slip privilege granted to) Senators in the home states of judges nominated for positions below the Supreme Court. There is no practice or procedure for obtaining Senatorial "advice" in advance of a Supreme Court nomination, and none is sought other than that necessary to make the necessary political calculations on confirmation.
Daschle is not coming out of left field in making his proposal, nor would it disregard the Constitution, as Fleischer suggests.
8:29:13 AM 
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