The Do Your Job Amendment

I find myself on the outside looking in at the debate over the current vacancy on the Supreme Court.

There are, quite frankly, no good actors on the current political stage. I believe the system is broken, and the Constitution requires amendment. Here is how and why:

Article II, Section 2 of the Constitution reads:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Summary: The president nominates and the Senate confirms appointment of Supreme Court Justices, among others.

What has happened to the process

In the final year of President Barak Obama's second term, the Republican controlled senate under the leadership of Senatory Mitch McConnell invented a new claim, completely against any Constitutional rule or precedent that in an election year a President has no right to appoint a Supreme Court justice.

The Democrats cried foul, but there is no rule in the Constitution (above) that mandates the timing of a senatorial consideration of nominations. The Senate can engage in "unlimited" debate, whether it is 5 minutes or 5 years. Senator McConnell used this loop-hole to delay filling a Supreme Court vacancy until his party regained the White House and could fill the seat with a conservative justice.

In a single word, the Senate Republicans stole the seat in 2016.

It was wrong. And furthermore, as I wrote last year regarding the impeachment process, the Democrats completely blew their opportunity for redress by not taking the complaint to the Supreme Court itself. The claim that a sitting President does not have the authority to appoint a nominee and, therefore, that the Senate does not have the obligation to act upon it, is highly unreasonable and clearly is designed to thwart the constitutional process. It was obviously dirty politics. The Republicans were thieves, and the Democrats incompetent in response.

Today, with the death of Associate Justice Ruth Bader Ginsberg, z"l, the tables are turned. In what looks to be the last 4 months of the Trump presidency, the Republicans are speaking about their Constitutional mandate and authority to fill the seat and the Democrats are screaming foul - demanding that the same anti-Constitutional argument used in 2106 be applied now. Give me a break.

Is there anyone left in this country who believes that the Republicans or the Democrats care what the Constitution says about filling Supreme Court Vacancies?

By changing their argument to grab another seat on the court, the Republicans in the Senate have proven beyond any possible argument that they are thieves and liars who see their political goals as plenty good enough reason to ignore the Constitution and swing an entire branch of the government to their political views. And by changing their argument to want a delay until after the Presidential election, the Democrats are proving that they too are willing to do anything to get that appointment. They are all hypocritical. It is unethical. It is immoral. It is wrong on both sides.

If it was wrong to delay in 2016 it is wrong now in 2020 as well.

This is Trump's legitimate right to nominate

It is President Trump's constitutional right - without any doubt - to appoint and fill the seat vacated by Justice RBG's passing. Let's not be children on the playground demanding that since "Jimmy got away with it" we get to behave the same way. Yes, they got away with it. Yes, they are thieves and liars. Yes, they are despicable and wrong. Make that case to everyone you know and use the tools of democracy to hold them accountable in November.

Two Terrible Outcomes

But it gets worse. There are two TERRIBLE outcomes from this that are completely predictable should the Democrats fight the Senate confirmation process before January.

1) The Filibuster will die forever. Democrats will threaten to filibuster on the Senate floor. Republicans will end the Senate rule on filibusters, which only takes a majority vote as a procedural motion. And the Senate will be forever changed. The need for a supermajority to do Senate business has been a force for good in history, and now will go away. No longer will the Senate be the "adult" in the legislature, demanding some level of bipartisanship to achieve its goals. It's just another House of Representatives with fewer people and longer terms of office. Great.

2) Future nominations can be simply stopped. There is no "election year" argument to be made with a straight face any more, so why not postpone consideration 10 months, a year, or even 2 or 3 years? If the Senate is allowed "unlimited" debate on nominations, a majority can always prevent the matter from being brought up or brought to a close. There is only one solution:

We must now push for the 28th Amendment to the Constitution, mandating a time frame in which the Senate must either act on a nomination or passively allow it to become approved by their inaction.

No future Senate must ever behave the way the Republicans did in 2016, and that can only be stopped by clear force of Constitutional law.

The 28th Amendment to the US Constitution

I propose the following Amendment to Article II, Section 2 of the US Constitution, implementing a 30 day window for the Senate to consider appointments. Informally, I would call this the "Do Your Job Amendment."

Suggested Text:

He 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 the President 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, whose Appointments are not herein otherwise provided for, and which shall be established by Law. The Senate shall inform the President of its approval or disapproval of any such nomination after no more than 30 days. If the Senate should fail to act to approve or disapprove in 30 days or sooner, then the nomination is approved and the appointment is valid as of the 31st day from the day of nomination by the President: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Sad but true. The kids aren't playing nicely, and they are starting to break our toys. They need to be told what to do by force of law.

Monday, September 21, 2020