Replacing the US Supreme Court

Today, I will make a radical proposal to reform the US Supreme Court. The Ninth and Tenth Amendments will be part of the following analysis.

An interesting background story:

Yesterday, I posted a response to this article on Yahoo News: “Wal-Mart wins Supreme Court sex-bias ruling.” The Court ruled that a class action lawsuit was not appropriate in this case.

QUOTE [my response]:

"… Because respondents wish to sue about literally millions of employment decisions at once, they need some glue holding the alleged reasons for all those decisions together," [Justice Antonin Scalia] said.

Ah, once again, Dirt Bag Scalia pontificates. Okay, Tony, I’ll spell it out for you. The “glue” you speak of is Wal-Mart’s very own Non-Discrimination policy which says, “Walmart will not tolerate discrimination in employment, employment-related decisions…”

That policy is an umbrella under which all Walmart employees and supervisors work. That’s the glue you weren’t (apparently) looking very hard for. If such policies are to be worth more than the paper they’re printed on, there must be a way unobstructed by SCOTUS antics that would allow for redress.

Steven Searle for US President in 2012
“If elected, I will seek to remove Dirt Bag Scalia from the bench.”

:UNQUOTE.

Almost immediately, someone calling himself “Gladius,” challenged me:

QUOTE:

Steven Searle is blowing smoke up your sphincter. A Supreme Court appointment is for life. They are a separate branch of the government and the President has no power over them once congress approves an appointment…

:UNQUOTE.

To which I responded Thor-like:

:QUOTE.

Gladius,

Supreme Court appointments are not for life – nowhere does it say that. What [the Constitution] does say: “The judges…shall hold their offices during good behavior…” Here’s how we can use this to our advantage:

·       If I get a chance to appoint any new SCOTUS judges, I will ask my potential nominee to publicly sign a contract in which the candidate swears (upon oath) to resign after 5 years. Further, if he does not, his contract would stipulate that he’d be in violation of “good behavior” and should be impeached. That’s how we get rid of the erroneous but wide-spread belief that such appointments are for life.

·       As for Scalia (and actually, all 9 of them), I said “I will SEEK to remove…from the bench.” I will do that by having in my own written contract: “If you vote for me, I will demand the resignations of all 9 justices but will renominate them for 5 years [under the conditions stated above]. Failure of these justices to submit their resignations immediately to their new president will be defined as a violation of “good behavior” and will therefore be grounds for impeachment.

If We-the-People elect me under such a contract, that would mean We-the-People would be defining “good behavior” as indicated.

:UNQUOTE.

Precipitating a Constitutional crisis:

If elected, I would use the occasion of my inauguration ceremony to demand the immediate resignations of all nine Supreme Court justices.

Of course, they might refuse. Then what? Basically, I would tell them – in so many words – “I’m tired of your bullshit.” Meaning? I would instruct the Justice Department to have no dealings with this Court – file no briefs, make no appearances. For this Court would be illegitimate in terms of the will of the people.

That “will” would have been expressed by “the people” having voted for me – and my contract. That contract would have served as advance notice to the Court of my intentions. By voting for me, We-the-People voted for my contract, which states what I’d do if elected. It also says, if I fail to do as promised, I would forfeit the presidency.

So, by refusing the will of the people, the Supreme Court would stand alone. Or would it? Would Congress rally round the Court? They could do so by threatening to impeach me, which is something any Congress could do for the flimsiest of reasons – or none at all, truth be told. If I would win this election as an Independent, you can bet that a Two-Party dominated Congress would unite to undermine my administration. They’d love to go back to business as usual with one of their fellow Party animals in charge.

That’s where I come in…and you. The US President has huge power in terms of the Bully Pulpit. We-the-People hold our legislators in low esteem – as in, “You wouldn’t actually let your daughter date one, would you?” People perceive the Congress as a major contributor to our problems. So it would be easy for me to “lecture” Congress – in the same breath as when denouncing activist judges who dare to defy the will of the people.

An added consideration: Suppose, to explore a scenario, three Supreme Court justices were to die in a plane crash. That would give me a chance to nominate their replacements, which I would but only under terms of the 5-year contract detailed above. If I actually got three nominees to sign such a contract, the Senate could refuse to ratify – unless my nominees were to sign (and swear to uphold) another contract, which would void the 5-year term limitation.

The Senate could do anything it wanted, but there would be a problem: The potential justices would be “swearing to uphold” two contradictory contracts. Common sense tells me that a person cannot swear two such oaths. During the Senate’s confirmation hearings, my nominees could be told, “We’ll confirm you but only if you sign this contract, which basically frees you from complying with the one you’d signed for the President.”

At that point, my nominees should say, “I signed President Searle’s contract in exchange for him nominating me. I couldn’t have secured his nomination without signing that contract and swearing to uphold it. How can you offer to have me sign and swear to another contract releasing me from that vow, just to win your confirmation? If I should feel, here and now, that I couldn’t honor the contract I signed with the President, I would have to withdraw my nomination. Actually, my signing your contract would serve to void his nomination, which would mean you couldn’t confirm me under any circumstances.

“If you want to confirm me, it must be under the terms of the contract I’d signed and sworn to uphold per the President’s offer.”

Congress has yet another option: The Senate could refuse to confirm any of my nominees. That would not put the Supreme Court out of business since they could lawfully function with fewer than nine justices. However, it would give the Senate the chance to voice their opposition to the underlying philosophy of my political contracts.

That would be unwise, though, since We-the-People supported that philosophy by voting for me under the terms of my own contract. If the voters would accept my innovation, the Congress would be on the ethical low-ground to challenge them.

Ninth and Tenth Amendment considerations:

We the People have a lot more power than we realize, as enshrined in the Ninth and Tenth amendments – each only one sentence long.

The Ninth: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Tenth: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Bottom line? We have “rights” and “powers.” We have the “right” to transcend the dictates of Congress and make clear the rules under which we will be governed. Some call that the Right to Self-Determination. We have the “power” to call the shots – even if that would mean (in effect) “no more lifetime appointments for SCOTUS justices.”

 We have “rights” and “powers” alright. But only if we choose to be assertive enough to wield them. You and I should unite in our insistence in these and other matters. But courage is called for – the courage to say, “It doesn’t matter how we’ve ‘always’ done things, we have the ‘rights’ and the ‘powers’ to say otherwise.”

As for courage, think of it this way: “A gun in the hands of a coward is still in the hands of a coward.” Your “rights” and “powers” are far more potent than any gun. But you – and also I, I must admit – must summon up the courage necessary to make certain fundamental changes. I, for one, am tired of politicized, activist courts that split far too often along ideological lines. We deserve better than that. We deserve justices who are accountable, instead of the arrogant lot we have now who are too comfortable in their (alleged) lifetime appointments.

Steven Searle for US President in 2012

Founder of The Independent Contractors’ Party

“In the name of the future of this country, we’ve got to take a stand. Are you with me on this?”

Contact me at bpa_cinc@yahoo.com