Slippery slope of compromise

According to this story, Senate Minority leader Harry Reid is proposing a compromise to stave off a manuever that would ban judicial filibusters, the much talked about "nuclear option." Under Reid's proposal, Democrats would agree to up or down votes on two Bush nominees to the Sixth Circuit Court of Appeals, but are demanding that a third presidential nominee be withdrawn and replaced "by an alternative who is preferred by Michigan's two Democratic senators."

This is not a proposal that should be taken seriously by the Republicans in the Senate or, for that matter, anyone who seeks to preserve the constitutional design, and the maintenance of the presidential power, Republican or Democrat, to nominate the judges of his choice. The Constitution provides in Article II, Section 2, paragraph 2, that 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." Alexander Hamilton elaborated on this presidential power in The Federalist Number 66:

"It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. 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." [Emphasis added.]

In recent years, with the increasing politicization of the judicial nomination and confirmation process, it has become fashionable for senators whose party does not control the White House to place undue emphasis on the "advice" portion of the "advice and consent" clause in an effort to convince the public that they are entitled to assist the president in selecting the nominee. If Hamilton is to be believed, however, it was never the vision of the Framers for judges to be selected by a committee consisting of the president and a group of senators. The choice of nominee lies solely with the president, regardless of party. The role of the Senate is to accept or reject that nominee. The compromise proposed by Harry Reid chips away significantly at this presidential power. It should be declined.

UPDATE: I recognize that, since Washington's first administration,there has existed the tradition of senatorial courtesy. As the Senate's website notes, however, that courtesy has traditionally been extended to senators of the president's own party in recommending nominees from the states which they represent. It is not a practice that allows senators of a party different from the president to dictate presidential nominees,the scenario envisioned by the Reid compromise.