The suggestion by the Financial Times that the Senate’s recalcitrance on a replacement for Justice Scalia amounts to “subversion” of the Supreme Court strikes us as all too typical of the loss of clarity in respect of the Constitution. It calls the reluctance of the Senate to give an automatic pass to whomever President Obama puts up for the high bench “the most blatant power grab by Republicans in Congress.” It calls it a “naked threat to hijack the nomination process.”

Where the FT really loses it is when it writes: “There is no constitutional basis whatsoever for the idea that a president loses the right to nominate Supreme Court justices , and have the Senate consider them for confirmation, in the final year in office.” What “right”? We ran the complete text of the Constitution through a machine the Sun recently acquired that, using the most advanced circuitry, is able to find and count every use of the word “right” in the entire parchment.

Not once in the 15 times the word “right” appears in the Constitution does the word denote something belonging to the president. The fact is that, except insofar as the President is also a citizen, the Constitution advances to him (or her) no rights at all. He has no right to nominate anyone to any court or ambassadorship or military post. What the Constitution assigns to the President is certain duties. That’s why the Constitution uses the word “shall.”

As in the following sentence, where the relevant presidential duties are delineated: “. . .he 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.” This is not a “right” but an obligation, and it’s hard to see how President Obama can dodge sending to the Senate a nominee to fill the vacancy left by the death of Justice Scalia. Mark the distinction. Mr. Obama doesn’t need consent to nominate.

The actual appointment, though, the actual raising up of the nominee to the high bench, this can only be done “by and with the Advice and Consent of the Senate.” Absent that — or a recess of the Senate — the President has no appointment power in respect of the Supreme Court. That power is derivative of the Senate (which is derivative of the States). And there is no timetable or other direction in respect of how or when the Senate must act. So if there is any hijacking being done here it would be of — not by — the Senate.

From the first hour that this question came over the wires, the view of the Sun has been that the President could — and should — send up to the Hill the best nominee he can find. The Senate, then, would be totally within its powers to do with such nominee what and when it deems fit. The Constitution specifically empowers each house to determine the rules of its own Proceedings. The President — and the Supreme Court, for that matter — can do nothing constitutionally but sit and wait.

In our view, the shrewdest observation yet in this fray was made by the Wall Street Journal in its editorial this morning, in which it raised the possibility of the President sending up the name of Jose Cabranes, one of the sages of the Second Circuit. He is a Democrat so widely respected among both Democrats and Republicans that it’s hard to imagine, even in the current extremis, the Senate failing to consent. We don’t mean to suggest that there is no one else (America is a big country), but Judge Cabranes leaps to mind.

What we take to be the Journal’s point is that the President could find a confirmable nominee if he wanted to. The real problem is that the President doesn’t want to. He wants to put the Senate on the spot, he courts a confrontation. The reason the Financial Times can’t quite figure this out may be that, even though it’s a Japanese owned newspaper, it’s headquartered in London, where traditionally these types of appeals are brought to the King- or Queen-in-Parliament. Then again, too, that is one of the reasons the 13 original American states decided they would not be subverted in the first place.