Saturday, July 3, 2010

Advise and Consent

Buckle up. The American Inquisition a/k/a “Senate Confirmation Hearings ” for a Supreme Court nominee has now begun.

You have to wonder why we make such a big deal of these appointments. The Founding Fathers certainly didn’t and they lived in a simpler time when a big deal would have made sense. It’s my guess that they probably never imagined that the ‘power’ to select would someday result in a court of nine people who would resolve life-altering issues. “Miranda” and “Roe v. Wade” come to mind.

The reason, in my view, for the hullabaloo of hearings is the same as what causes the Court, as I wrote last year, to appear like royalty. These are lifetime jobs.

Let’s take a closer look again at how the Court was formed:

The special power to choose (nominate) justices was given to the President : " nominate, by and with the advise and consent of the Senate" and curiously was buried in Article II, Section II of the Constitution. It was stated after " appoint Ambassadors, other public Ministers and Consuls.." and followed by " all other Officers of the United States, whose appointments....",and on and on.

I’m no Constitutional lawyer, but, the use of ‘advise’ is also curious. The original meaning from Middle English means ‘consider’ but the generally accepted meaning is the transitive verb ‘inform’ as in “ advise him of his rights”. Certainly, both of these meanings imply “check ‘em out ” for the President who has nominated them, but I gotta tell ya, I seriously doubt they performed like the Congress of our time. The Founders, of course, had no TV.

So, yes, I believe the process is prolonged because these judges remain on the bench for life. Holy smokes! Why? Because the authors of the Constitution wrote,“ The judges, both of the supreme and inferior courts, shall hold their Offices during good behavior.”(Article III/Section I ) Good behavior ? Were they kidding? (At the risk of offending my fellow seniors, how bad can you be at 80 or 90?)

Since the average lifespan at the time was in the mid-40’s, I guess how long they served was probably of no real consequence to them. Today, being considered for a lifetime job would be a big deal in any business and, as far as I know, doesn’t exist in this age of contracts.

In due respect, the Founders really blew this one. But, the Constitution is, as they say, a “living document ”, so, we can and should amend the constitution to create term limits.

If and when this is done, these Congressional hearings with televised posturing that gives birth to sound-bites might mercifully disappear. And, the important process will be in better proportion to the simple task of confirming a nominated person to perform an admittedly critical responsibility.

Too bad, by the way, the Founders didn’t include “during good behavior” when establishing Congress. We probably wouldn’t need term limits!