THREE = = = A CHARACTER TEST FOR THE AGES

We are in the current situation regarding judicial and Supreme Court appointments (some might call it a predicament and others with differing perspectives an historic opportunity) because the Appointments Clause is vague with regard to certain details, especially time constraints and decision criteria. Among the various potential issues, the Appointments Clause specifically does not address:

• how long the President can take to make a nomination;
• how long the Senate can defer action;
• on what grounds the Senate can reject a nominee (compare to impeachment or treason, wherein the criteria are enumerated);
• if the cause (e.g. death, resignation, retirement) of a vacancy has any bearing on the manner in which it is filled;
• if temporal proximity to a federal election has any bearing;
• what voting majority should be required for senatorial consent;
• how long a seat or position can remain vacant;
• how actions in bad faith by the President or by the Senate can be cured or deterred;

and in a related matter

• how many Justices shall sit on the Supreme Court?

As it is, we cannot be certain what the Founders intended by the existing language. Is it vague by oversight or by design? Perhaps in the language of the time their meaning and intent was stated with clarity and precision, and it is we who in modern times have forgotten what “shall” said and meant to those who wrote it down.

While precedent, accepted practice, common sense and “gentleman’s agreement” may permit a vague regulation to function in practice for centuries, sooner or later it seems unavoidable that guardrails hewn of honor, decorum and tradition will be crashed. If the Founders were writing the Appointments Clause in the language of today (and were freed of the limitations imposed by four pages of parchment to contain an entire Constitution) the rules regarding appointments might be more specific. Or the Founders may have recognized that no amount of language or specificity could prevent bugs in their code from being exploited by partisans intent on wiring around or defeating original intent, and so they opted for the simplest expression of the rules of appointment they could devise, hoping for the best.

The rules worked for a long time, and we can still hope for the best. But there is something more that could be done…

[Next Essay, A trip down memory lane]