Standing outside the Supreme Court to deliver a message to President Obama, U.S. Senator Ben Sasse makes it clear that he is unwilling to consent to any nomination because of President Obama's current "'I have a pen and I have a phone’ theories of executive unilateralism."

"While there are important precedent arguments about election year vacancies, conservatives should also make the principled case for what is at stake in this moment with a post-constitutional President," said Sasse. “My message to President Obama is clear: repudiate the post-constitutional way you’ve been governing and this could be an opportunity for Americans to come together for a constitutional recovery.”
"Mr. President, that flag is at half-mast because America has lost a constitutional giant in Justice Scalia. Bizarrely, our national media immediately descended into bickering about Republicans and Democrats.

"When I read my Constitution, I don’t see anything about Republican or Democratic seats on the Supreme Court. So let’s just forget all that and let’s instead talk about our jobs. Because you and I actually have one fundamental, core job in common.

"We’ve both taken an oath to uphold and defend and teach the Constitution. One sub-part of your job is that, when there’s a vacancy on the Supreme Court, you have the right to nominate someone to fill it. One sub-part of my job is that I’m supposed to provide advice and consent on who you might nominate. Mr. President, I’m here to provide you some advice on how you would get my consent.

"I recommend that you take your potential nominee and go and stand in the Rose Garden and have that nominee explicitly repudiate your ‘I have a pen and I have a phone’ theories of executive unilateralism.

"You have said in the past that it doesn’t matter to you if the Congress passes the laws you want them to pass because you can just make up law by executive fiat. Sir, that’s not the American system.

"The American people are blessed to be the most exceptional nation the world has ever known and it is because the U.S. Constitution is the most exceptional political document ever written. Our Founders understood that government doesn’t give us rights—God gives us rights by nature and government is just our shared project to secure those rights.

"Our Founders also understood that those who serve in government are always tempted to want to amass more and more power for themselves—and power corrupts. So they devised a constitutional system with three separate branches. They divided government and these three separate branches are supposed to check and balance one another and all of them are supposed to uphold and defend a constitutional system of limits.

"So regularly, the media acts like everything is just a fight about energy policy, or immigration policy, or water policy—no, fundamentally, we are supposed to affirm a constitutional system where the people are in charge and the people can hire and fire those who serve them.

"Mr. President, I advise you to please nominate someone who loves the Constitution and who will repudiate your theory of ‘I have a pen and I have a phone’ executive unilateralism. That’s my advice on how you’d get my consent. Thanks for listening."