SPEED LIMITS by Jim Redwine

Gavel Gamut

By Jim Redwine

(Week of 22 February 2016)

SPEED LIMITS

The Constitution is viewed by many of us much as we view speed limits, advisory only. You may be thinking I mean that as a criticism. You would be incorrect. We apply the term genius liberally. However, it was true genius that the Constitution would remain relevant regardless of changing times.

James Madison, et. al., devised a tool that would apply to events unimaginable in 1789. Our obligation, just as it has been the duty of those generations before us, is to properly use the tool. When a job changes mid-term and our existing implements are not suitable, we should not give up on the job but modify our approach or, perhaps, adjust or replace our tools. Since 1789 we have done this many times.

Changing our Constitution is rightly a cumbersome process. Bringing an existing situation within the general parameters of the document is done every day. Our current issue involves the replacement of Justice Antonin Scalia on the Supreme Court. People on all sides cite the four walls of the Constitution as requiring the outcome they desire.

Article II, section 1 (1), provides the President shall serve four years.

Article II, section 2 (2), makes it the President’s duty to nominate members of the Supreme Court with the Senate’s duty to advise and consent.

Article III, section 1, gives Supreme Court judges a lifetime appointment “during good behavior”. That this can result in the third branch of our government being in the hands of the same nine people a very long time is proven by Justice Scalia, who was nominated by President Ronald Reagan in 1986. Reagan left office in January 1989, was succeeded by George H.W. Bush, William Clinton, George W. Bush and Barack Obama.

These presidents were all popularly elected, but the American people only had input as to Ronald Reagan when it came to voting for the president who chose Antonin Scalia. In other words, to those who postulate the Supreme Court is populated by persons chosen by the electorate via the presidential election, Scalia’s case contradicts this. The same is true for almost all of those who serve or have served on the court. As Shakespeare might have put it, “The evil that men do lives after them, the good is ‘oft interred with their bones” (Julius Caesar, Act III, scene ii).

This is not to say the judges were or are evil, it only means the way we have applied the Constitution results in a denial of democracy. Perhaps we should revisit our current procedure.

For now, precedent and custom support the view that President Obama quickly nominate a replacement for Scalia and that the Senate set and hold hearings with dispatch. Either the Supreme Court has important work that calls for the participation of nine justices and we should get on with it, or, if not, why have a Supreme Court?

The silliness of delaying a replacement until next year is no less silly than setting it off for five years in the event the presidential election does not go as obstructionists may hope.

However, our current dilemma is not my focus. What I hope to suggest in future columns are modifications in the selection of judges that stay true to the Holy Grail of our Constitution, i.e., the separation of powers and the three equal branches of government, while enhancing democracy.