BUSINESS

Defining presidential power of appointment

As Pooh would say, “Oh bother!” It’s always something in Washington.

And this particular tempest in a partisan teapot has to do not so much with the pres-ident’s authority of appointment — and, in particular, his constitutional authority to appoint the justices of the United States Supreme Court — but more to do with pol-itics, plain and simple.

So, you may be ask-ing, what else is new?

Article II of the Constitution vests the powers of the executive branch in the president of the United States and details the powers of that office. In short, the executive branch is responsible for car-rying into effect the laws as passed by the legislative branch and

making sure that the laws are observed.The Appointments Clause (Article II,

Section 2) gives the executive branch and the president, not Congress, the power to appoint federal officials. The president has the power to appoint federal judges, ambassadors and other principal officers of the United States, subject to Senate

confirmation of such appointments. Al-though the Senate may opt not to confirm a presidential appointment, Congress cannot limit or eliminate the president’s powers to make the appointments.

What the Appointments Clause says ver-batim is this:

“(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 ... ”

So, the plain and simple fact is that the power to appoint the justices of the Su-preme Court lies solely in the hands of the president subject, however, to the “advice and consent” of the Senate.

A president is elected for a four-year term. First, by tradition, begun by our first president, George Washington, and then by adoption of the 22nd Amendment in 1947, the president may serve two terms. Each term is four years. To posture that a president may not exercise his constitu-tional powers in the fourth year of his term is to argue that the president may only act

Rohn K. RobbinsVail Law

VAIL LAW, A12

S, M T, M

S, M

FINAL DATES OF THE SEASON

ReportersRoundtableSet your radio dial to 97.7 FM Wednesday Evening 7:00 – 8:00 P.M.

Eagle County Caucus, Super TuesdayLocal ballot measures, Burton, Snow….What’s it all mean?Pundits Ed Stoner & Randy Wyrick

With host Don Rogers& Co-host, The snerdly, Richard Carnes

The Vail Daily | Wednesday, March 2, 2016 | A11

as authorized by the supreme law of the land for 75 percent of his time in office.

Some other presidential powers include acting as com-mander in chief, keeping the Congress advised of the state of the nation, receiving foreign ambassadors and ministers, commissioning officers of the United States and “tak(ing) care that the laws be faithfully executed.” You would likely agree that if appended to any of these other presidential powers was the phrase “except during the last year of a president’s term,” it would yield an absurdity. Why then, is it less so in exercising his power of appointment?

This, by the way, cuts both ways; Democrat, Republican, independent or otherwise, any president should and must have the right to fulfill his or her constitutional authority including, without limitation, the authority to fill vacancies that arise in the Supreme Court.

Adding irony to the current political bickering is the un-diluted fact that the recently deceased Justice Antonin Sca-lia — arguably one of the greatest wits and writers among the 112 persons who have served throughout our history as justices of the Supreme Court — was a strict construction-ist. If anything, he was a strict strict constructionist.

What strict constructionism means is interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions, inventions and societal changes. What strict construction-ists believe is that the Constitution means was it says, is to be taken literally and is to be interpreted to give effect to what the framers intended.

Scalia would likely say, were he alive today, to get on with it, as he did when Elena Kagan filled the seat vacated by the retirement of Justice John Paul Stevens.

In strict constructionist terms, the power of the Senate to advise and consent was intended to reject presidential ap-pointees for reasons of incompetence, inexperience and im-propriety. Increasingly over the years, however, most of the rejections, reflect a difference between the president and the Senate over whether the nominated justice represents the right ideological choice. From 1789 through 2010, the Senate rejected 31 (less than 20 percent) of the 160 nomi-nees to the Supreme Court. Between 1894 and 1967 (a pe-riod of 73 years), only one nominee was not approved. The remaining 30 rejections have transpired over the last 48 years mirroring the increasing partisan rancor in D.C.

If the president puts forth a nominee such as Sri Srini-vasan, who was confirmed by the Senate in May 2013 by a unanimous, 97-0 vote, the obstructionists would be hard-pressed to claim other than a disingenuous political agen-da and would make it awkward for Senate Majority Leader Mitch McConnell to block a vote on his nomination.

The president would be well-advised too, to make his pick wisely so as not to similarly smack of politics. Bring us a person of competence and character. And then the Sen-ate should do what it must do. Politics aside.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, robbins@slblaw.com and robbins@colorado.net.

VAIL LAWFrom page A11

B E N E F I T I N G S H AW R E G I O N A L C A N C E R C E N T E R

FOR ALL OURCANCER PATIENTS

It started as a ski day to benefit

breast cancer patients, but now

benefits ALL patients at Shaw

Regional Cancer Center,

providing tons of free

programming like exercise

training, nutrition coaching,

emotional support, outdoor

adventures, a nurse navigator,

massages, alternative

treatments and much more.

We just kept it pink cause it's fun.

presentingsponsor

REGISTER NOW l PINKVAIL.COMTHE WORLD ’ S B IGGE ST SK I DAY TO CONQUER CANCER

2

APR

IL

2016

This is not a sofa bed,it’s an eye-catching, sleep-inducing, marvel of modern engineering.

The New Comfort Sleeper™ from American Leather

No bars, no springs, no sagging.Lowest price of the year! Now through September 30.

10-6 Mon-Fri | 10-5 Saturday | 12-5 Sun970.328.6900 | 250 LINDBERGH DRIVE

GOING TO COSTCO? WE ARE JUST 1 BLOCK EAST

NOW ON SALE!

THROUGH SEPTEMBER 30th

NOW ON SALE!

THROUGH MARCH 31ST

Call today for your FREE, no obligation consultation.

970.300.5690www.vailvalleysedation.com

You don’t need to FEAR THE DENTIST

If the word “dentist” sends shivers down your spine, you can finally relax, Dr. David Maloley offers oral sedation, a safe and effective way to completely relax during dental treatment.

Your health is continually monitored while you are under the effects of oral sedation and you are never left alone. Your dental treatment is completed quickly and you will awaken refreshed and with little memory of the procedure.

A12 | Wednesday, March 2, 2016 | The Vail Daily