A couple of days ago, someone anonymously posted four questions concerning my essay posted on Sept. 19, 2010. Today I attempt to answer two of those questions – these two:
“Why would you [if elected President of the US in 2012] ignore the Constitutional duties that the Senate has in Supreme Court selection? Wouldn’t the Court simply declare your choice and method unconstitutional?”
These questions were in response to one of my campaign promises listed in my contract*:
I will not nominate any person to the US Supreme Court who will not sign the following contract in advance: “I do solemnly swear (or affirm) that I will serve for only five years, after which I will resign. Failure to resign, I here and now freely stipulate, will constitute a violation of the ‘good behavior’ rule mandated by Article III, section 1 of the Constitution. Such a violation would and should subject me to a well-deserved impeachment and removal from office.
Before I answer Anon’s questions, I wish to change the text highlighted above to read: “any position in the federal judiciary up to and including the US Supreme Court.”
My Reply to Anon’s Questions
The Constitution allows the President to nominate candidates to the federal judiciary, while placing no restrictions on how he is to make his decision. The Senate’s only constitutional duties, which would not be impinged by my contractual insistence, are summed up in these words: “…with the advice and consent of the Senate, he shall appoint…judges of the Supreme Court [and all other federal judges as well]…” By the way, that “advice” doesn’t have to be sought or considered before POTUS nominates.
I could choose whomever I’d please but the Senate would still have the final say as to whether my nominee would be confirmed. Now the Senate might object (but so what?) to being forced to consider a nominee who could not serve more than five years, though that same nominee (after resigning) could be reconfirmed by a future Senate. That body should welcome the chance to reconfirm, after getting a chance to review how judges performed during their five-year terms. This, of course, assumes the next President would reappoint, but if he wouldn’t – that would be his prerogative.
Of course the Senate could refuse to consider any of my nominees. That could mean a great number of seats on the bench would remain vacant because (again) I wouldn’t nominate anyone who’d refuse to sign that contract. If that would be the will of the Senate, who would I be to argue? Of course, the Senate (by rejecting a provision in the contract under which I was elected) could be said to be rejecting the will of the people.
The Senate might decide to approve one of my nominees while adding this language to that written approval: “The 5-year-term-of-office contract signed by this nominee is, by decree of the Senate, held to be null and void.” That approach won’t work for two reasons:
· The Senate does not have the power to nullify an oath. For instance, could the Senate nullify the oath taken by the President before he assumes office?
· The Senate would, in effect, be telling the President the terms and conditions under which he must nominate. Since the Constitution doesn’t define these, how does the Senate get to? Besides, if the Senate wouldn’t like my nominee because he’d come to them for consideration while “shackled” to an oath, the Senate could simply refuse to confirm him.
A likelier scenario would occur if a duly-appointed judge decided not to resign after his five-year term expired. According to his contract/oath, he could be impeached and removed from office. But that would be up to Congress. If Congress decided not to impeach, they would be letting a scoundrel get away with violating his oath. But, again, that would be up to Congress, though I think that body would acquire a negative taint with this type of complicity.
The Supreme Court could declare my method unconstitutional, secure in the knowledge that Congress would not impeach them for this. However, SCOTUS would have to overlook the fact that my method doesn’t violate the Constitution at all. [“Show me where, good Justices!”]
My method should be hailed as a welcome relief by those who are tired of judicial tyranny, who yearn for a way to discourage judicial activism. Don’t forget – any of my 5-year nominees could be renominated, so perhaps they’d think twice before jeopardizing their second chance by engaging in extra-judicial behavior. Nowhere in the Law of the Land are judges granted lifetime appointments, though a lot of people make this assumption. They are allowed to “hold their offices during good behavior.” All I’m doing (in effect) is trying to define (at least in part) what constitutes “good behavior.”
Steven Searle for US President in 2012
Founder of The Independent Contractors’ Party
“The only reason anyone could oppose my proposed 5-year judicial contracting system would be due to an inherently rigid mindset” – Steve.
Contact me at bpa_cinc@yahoo.com .
* “my contract” – I am the only presidential candidate in the history of this country to offer a binding written contract to the voters, as explained here:
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