A warning:  When we composed this examination of current events, we did not realize it would generate a second chapter.  Today, chapter one.

A lot of people are getting all hot and sweaty about President Trump’s push to get his Supreme Court nominee confirmed by the Senate before the election so she can rule on any lawsuits about the legitimacy of the election that reaches it. He is convinced the only way he can lose is if there is massive voter fraud and he has lawyered-up to file a lot of lawsuits. Addressing that demagoguery is not our purpose here today.

Let’s talk about the process a little bit because it’s been a while for most of us since our political science classes in high school or college and with all of the shouting and finger-pointing going on, a bit of a refresher course might be in order.

First, the president said last week, “I have a constitutional obligation to put in nine judges—justices.”

Well, yes and no. Article two, section two of the United States Constitution says the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint….judges of the Supreme Court.” Note that it does not say how soon after a vacancy occurs the President must act.  It also does not say an incumbent President must act.

Article three, section one says, “The Judicial Power of the United States shall be vested in one supreme court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme court and inferior courts shall hold their offices during good behavior and shall at all times receive for their services a compensation which shall not be diminished during their continuance in office.”

Now, there’s something we don’t hear discussed often.  These judges shall hold their offices “during good behavior.”  We went to Congress.gov to see what that means because most of us, your faithful observer included, who had not observed that qualification before and wonder what that means.

For those of you who think the only thing we have to do is read the Constitution to solve all of our problems, this is an example of the flaw in that argument.  One of many.

Congress.gov says, “This standard, borrowed from English law, ensures that federal judges hold their seats for life, rather than set terms or at the will of a superior. The applicability of the Good Behavior Clause to the removal of federal judges has been the subject of debate; in particular, whether the phrase elucidates a distinct standard for removal apart from the high crimes and misdemeanors standard applicable to the impeachment of other federal officers. While this question has not been definitively resolved, historical practice indicates an understanding that the Good Behavior Clause protects federal judges from removal for congressional disagreement with legal or political opinions.^”

If you think the noise we are hearing about the president’s appointment is loud, imagine what would happen if Congress had the power to remove Supreme Court Justices with whom the majority of Congress disagreed? Why would it have to be the whole Congress, even?  The Senate is the chamber that confirms nominees to these offices.   The Senate giveth; the Senate taketh away.

Nothing is written that prohibits Congress from doing that. What is written is the power of the House to impeach federal public officials (Article one, section two, clause 5).  As we know, after the House files charges (impeachment), the trial is held by the Senate (Article one, section 3, clause seven). Not all federal officials can be impeached (Article two, section four, which also defines the misconduct that can lead to impeachment).

But impeachment is not expressly mentioned in Article three, the judicial article. Instead of listing specific causes for impeachment of Supreme Court Justices, the Constitution speaks of “good behavior,” and that, says Congress.gov, “is widely understood to provide the unique nature of judicial tenure.”

One interpreter of that standard said in 1983, “The nation’s founders so insulated the job against political pressures because they believed the mission of the federal courts requires a high degree of independence in the third branch. The security of life tenure, the Constitution’s framers thought, would encourage resistance by the federal branch to popular moods of the moment not properly expressed in laws, and would promote the fidelity of federal judges to the enduring values embodied in our fundamental instrument of government.”  The observation was given in the John R. Coen Lecture Series at the University of Colorado School of Law by United States Circuit Judge Ruth Bader Ginsberg.

Your observer has diverted himself from the theme of our discussion but the diversion, we hope, has helped understand the special nature of the third arm of our government.

Back to the president’s statement that he has a Constitutional responsibility to “put” nine judges on the U. S. Supreme Court.

Not really.  The word “immediate” is not in the Constitution. The words “without delay” also are not in it.

He can only do it if the Senate agrees to let him do it.  That’s where the Advice and Consent language kicks in.  He also is not required to make sure the court has nine justices. The number nine is not mentioned in the Constitution and the president’s fellow Republicans a few years ago had no qualms about leaving the court with eight judges for fourteen months so that the next president could make the appointment.  Did that hamstring our judicial system?

No, it did not. In fact we have found eight cases dating to 1973 in which the court tied, sometimes because of a vacancy but most often because one of the Justices did not take part in the decision for one reason or another.  Eight cases in 47 years hardly hamstrung the judicial system.  So there is no Constitutional requirement that the president appoint a ninth Justice.  He is not prohibited from doing so a few weeks before an election, either.  Nor is he prohibited from leaving a vacancy indefinitely.   But when he does suggest someone, the Senate is mandated to provide its blessing before that person can put on the robe.

In fact, there is nothing in the constitution requiring nine members of the U.S. Supreme Court, as you could see by reading the provisions at the top of this offering. We will get to that next week.  We will mention that the number of members of the U. S. Supreme Court is set by Congress, which is why we’re hearing Democrats say they’ll try to expand the court to keep it from swinging unacceptably (to them) to the right.

“Packing” the court, as it’s called, has its perils.  What happens if Congress decides a 9-3 court is too radical?  Would it raise the number of 19?  Lower it back to 9, kicking some judges off the bench in the process?

It is obvious that the contemporary situation is a dangerous one—not in terms of whether the potential new court member swings the court far to the right but whether the handling of the nomination by the president and his party will lead the Democrats to do something that spreads the chaos of the Legislative and Executive branches to the judicial branch, where calmness in determining the validity of our laws should prevail.

—at least, in a more perfect world.

We conclude by submitting that the arguments made in the Merritt Garland case are specious and do not apply in the current case. The public’s decision in 2016 to have a president and both houses of the Congress represented by one party does not give that party a license to act with impunity in the current instance, especially since that party has seen a reduction in its overall congressional numbers in the intervening election although gaining two seats in the Senate in 2018. The argument is a red herring.

The issue, created in the Garland case, is whether one party can act one way prior to an election and then four years later, act another way even closer to an election. Any discussion beyond that is political gymnastics. The people’s will seems to be changing, as seen in the change of party power in the House and concerns by Republicans that their control of the Senate after November is in jeopardy. The surveys indicating the public mood continues to change this year further weakens the argument that what was sauce for the goose in 2016 should not be sauce for the gander because of 2018.

But, let’s face it.  Senate Republicans don’t give a tinker’s dam what one old man on a quiet street in Middle America thinks.

Next week we’ll be back with some more history and a look at the court’s future, which could become worse for liberals and might not get back to 5-4 for a decade or more.