The current blather about the dying wishes of RBG, and of the lack of consideration for Merrick Garland, and of norms and traditions, etc., appears little more than the partisan bickerings of people who lust for power.
Popular discussion of constitutional law and politics is in a pretty sorry state.
Pull out your pocket constitutions, Americans!
If they did, what would they learn relevant to the current brouhaha regarding filling a newly opened seat on the Supreme Court?
“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. . . .”
The Constitution of the United States, from Article II, Section 2.
Note that the President of These United States does not have an obligation to appoint judges at any given time, or labor under any prohibition as to any period in which such appointments might be made. The Senate, also, lacks constitutional obligation to advise or consent. These are Powers. Powers are not obligations. Powers may be optionally applied.
Elementary stuff, no?
There is also no specification for the number of judges to sit on the “supreme Court.” Nine has become traditional. There could be more, there could be less. There is no requirement for maintaining an odd number on such courts, the odd (as opposed to even) number being merely convenient for deciding split votes.
Paul Jacob (see Common Sense with Paul Jacob) has argued the case for reducing the number of Supreme Court justices to seven. I concur. That might be a good idea. How would we get rid of one? I would go for the frank racist on the court, Sotomayor. But Paul also wants term limits for the justices of the Supreme Court. I suggest establishing terms first. At present Supreme Court justices serve for life. Establishing terms of duration, requiring reappointment, makes sense to me. As with limits on the number of terms in office, establishing mere terms would require a constitutional amendment.
But current debate is a far cry from this level of deliberation. The Democrats have a lot to work through. Not getting what they want — something I have always had to deal with! — may be an elementary burden of democracy, but not, apparently, of the current culture of The Democracy.
twv
Wirkman Comment 