I’m Sorry
You tell me mistakes
Are part of being young
But that don't right
The wrong that's been done
Oh, oh, oh, oh, oh-oh
Oh, yes
Opps, I made a mistake!
I was wrong. I should know better than to practice law without a license. In a blog post yesterday, https://dbeagan.blogspot.com/2022/01/supreme-court-justices.html, I said that the three Justices appointed by President Trump were illegal. They do, as you can tell from my blog post, have opinions with which I disagree, and they might not be supported by a super-majority of the Nation, but they are legal. A semi-colon in the text of the Constitution means a lot. A more careful reading of Article II Section 2 of the Constitution makes it clear that Justices of the Supreme court only require a simple majority of the Advice and Consent of the Senate.
[The
president] shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur; and 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, and all other
Officers of the United States…
While
Treaties require a supermajority of the Senate, all appointments and nominations,
including Judges of the Supreme Court,
only require a simple majority of the Advice and Consent of the Senate. I was wrong and that semi-colon distinctly separates
the super-majority to make Treaties and the simple majority to appoint.
However there
is an argument that the appointment of judges, of the Supreme Court, the District
or Appellate courts, are different than Ambassadors, other public Ministers and Consuls,
and all other Officers of the United States.
Those other officers serve only during the term of the President. While they do
represent the will of the People’s executive representative, the President, at
the time of their appointment, the will of the people, and the views of each person
appointed, may change over time. Federal positions that represent the sovereign People,
are elected, are appointed by elected officials, or are a protected class of Civil
Servants. Every two years, the will of
the People is expressed in a federal election.
At every election, all of the representatives of the House and one third
of the Senators are up for election. Every other election, the People’s representative
to head the Executive Branch, the President, is up for election. Ambassadors and
other public ministers and Consuls, serve at the pleasure of the President and while
they have no specific term, effectively their term is that of the President. Judges
however are traditionally lifetime appointments.
When the Constitution was drafted and ratified two things were very different.
- When the Constitution was drafted, life expectancy was only was only 38 years for a white male and the eligible voters representing the people were free white males over 21. Voters today include all races and genders over the age of 18 years and the life expectancy today is 77 years. The tenure of judges has increased accordingly. Cramton in his article on reforming the Supreme Court, noted that “Since 1789, the average age of appointment to the Court has been fifty-three, with most appointees falling between age fifty and fifty-five. Until 1970, Justices resigned or died at an average age of sixty-eight, thus serving an average tenure of about fifteen years. A new Justice joined the Court about every two years “[1]
2.
The
formation of political parties was not understood by the Founding Fathers. The single representative per voting district
system was not shown to result in two parties until Duverger’s Law[2]
was proposed in the 1960’s.
The brilliance of the Constitution is that its drafters realized
that they were not perfect and they included provisions to amend the Constitution. The second difference cited above gave rise to the Electoral Crisis of 1800 and the passage of the 12th Amendment
of the Constitution. That Amendment recognized that the Vice President and the President should
not be the first and second place finishers in the electoral College, but
should be separate offices because they
would be from the same political party.
The first difference, as cited above, recognized that virtual lifetime office,
continued re-election of the President, was not good for the nation and resulted in
the ratification of the 22nd Amendment after FDR’s fourth election. While FDR was arguably good for the US, limiting each President to two terms was considered to be a thoughtful
protection for the People against Presidential excesses.
To ensure that each four-year presidential term can appoint judges, and to prevent lifetime
appointments, it is proposed that the Constitution be Amended such that the Supreme
Court will have 10 justices, each serving a sixteen-year term, with each term being
staggered by 2 years, preferably beginning and ending in the off-years for elections. This would ensure
that no President could appoint all of the members of the Supreme Court and a
one-term President could only appoint 2 members. Since the appointment to the Supreme Court is arguably
as important as a Treaty, it is proposed
that the required Advice and Consent of the Senate also be by two thirds. It is further proposed that all opinions of
the Supreme Court require a super-majority (6 to 4).
Since super-majorities prevent both the tyranny of the majority and the tyranny of the minority,
but an efficient supermajority is not possible in a two-party system, it is further
suggested that all super-majority votes, including the Senate filibuster to end
debate, be by secret ballot to prevent retaliation against those who vote with
the super majority but against their minority party.
[1]
Cramton, Roger C. (Fall 2007). "Reforming
the Supreme Court". California Law Review. 95: 1313–1334
(at p.1316). accessed
from the original on January 26, 2022 at https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2216&context=facpub
[2]
https://en.wikipedia.org/wiki/Duverger%27s_law
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