Remember when you were a kid and a new kid showed up? The new kid had different habits, customs, ideas. He couldn’t help it – he came from a different background, maybe a different culture. It was all okay until you played Monopoly. It seems everybody has their own idea what the rules are to the popular game, and that was okay if everybody agreed to the rules. A good example is the money-in-the-pot. Fines and fees were always thrown into the middle of the board (not in the rules), and whoever landed on the Free Parking space , got the cash. That’s not in the rules, which come inside the box with the game, but is common practice.
My kids will tell you that I will not play Monopoly with my lovely wife of 36 years. Not because she has strange rules, certainly not because she cheats. It is because she is ruthless – it’s a side of her you do not want to see. She will seek to monopolize (that is the name of the game, after all) the board, especially high rent properties, and offer no grace to you if you fall into her clutches. She’s good at it.
And she plays by the rules.
I like America, land of my birth. I believe we have the most successful and fair form of governance ever created by the mind of man. Our Constitution is a rich and complex document, full of interesting and well-crafted ways to keep it fair for all. And this document has served us well, having been drafted in 1787 and ratified in 1788, it has stood the test of time.
The Constitution of the United States serves as the rules of our government. The rules of the game are defined, and there are even rules for changing the rules. Because backgrounds, ideas, cultures change over time. The Constitution has been amended 27 times to reflect an ever-growing and ever-changing country. It is a living document, subject to interpretation, but with careful judicious approach.
Hence, the Supreme Court. When something makes it way through the lower courts, it may end up here, in front of these nine diverse individuals, with solid judicial background, well-grounded in the Constitution and the precedents for previous Supreme Court decisions. It is up to them to apply the rules to the current situation, and rule on how to go forward. They do not make law; they issue opinions with which the law aligns.
Which brings us to our current predicament – the choosing of a new Supreme Court Justice. The rules are quite clear:
Article II / Section 2
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 sitting President of the United States, duly elected under the provisions of the Constitution, shall nominate justices, under advice and consent of the Senate. Those are the rules, even though some will say “but this is what was done by them” or “that’s not the fair way to do it” or “we think it should be done this way”, all of which may have merit. But those are not the rules. And every single elected official swears or affirms to uphold the Constitution when they take office.
It is clearly in the job description of the office of the President. If your job description told you to gather up shopping carts in the parking lot, your argument against that could not be “it’s raining outside” or “I never had to do that at Kmart” or “I don’t think it’s fair”, that is, if you wanted to keep your job and perform the duties you agreed to when you took the job.
We are in an election year, it is true. But the sitting president is the president until either he is re-elected, or the next president is elected and sworn in. That will happen as proscribed in the rules:
Twentieth Amendment / Section 1
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
But what about…
If a president is a lame duck (at the end of his second term and cannot be re-elected) and the Senate is the opposition party, a confirmation is unlikely at best. At worst, the Senate may not even bother with the process, knowing they will not confirm the nominee. Is that fair? It is realistic. Why would a Senate confirm a lame duck appointment if they feel that the next president will offer a more acceptable nominee?
It used to take a super-majority (60 out of 100 Senators) to confirm Supreme Court Justices. In 2013, then-Senate Majority Leader Harry Reid (D) had the rules changed for all appointees except the Supreme Court. He was warned that the so-called “nuclear option” would backfire. It did, in April of 2017 when the Republican controlled Senate extended the simple majority option to Supreme Court Justices and confirmed Neil Gorsuch.
But House Leader Nancy Pelosi said…
As you may read for yourself, the rules give the House absolutely no input on the subject. And she, and the rest of the fine members of the House of Representatives, have sworn to uphold the Constitution. So, they need to stick to the job assigned them which is also well-defined in the rules.
But – term limits!
Here is what the rules say:
Article III / Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
As long as the Justice behaves, they keep their appointments. Ruth Bader Ginsburg was a Justice for 27 years and was 87 years old when she died. The term limit is death. A Democratic congressman wants to introduce a bill to set term limits at 18 years. If that is a good idea, it cannot be done legislatively. It will require an amendment to the Constitution. And that is not a simple vote by a dominant party – our Forefathers had far more sense than you may give them credit for. To change the rules, you need to follow the rules:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Changing the rules cannot be done lightly, which is why it is so hard to do. Remember, the United States managed to outlaw the sale of alcohol by amending the Constitution (Amendment 18) and then had the good sense to repeal it (Amendment 21) – the only Amendment repealed. As society changes, and our understanding of what we want and expect as a society changes, there become good reason to amend the rules (13th Amendment – abolition of slavery, 19th Amendment – the right of women to vote, both come to mind).
We have made it this far with the original rules still in play, amended as necessary, and we have become the most successful and enduring government in the history of mankind. We have made it 244 years by using rule of law, and if good sense prevails, we can continue to thrive and progress, over time, into whatever the future holds.
It is not about feelings, it is not about opinions, it is not about how you were raised or where you came from or what your parents told you. It is not true about Monopoly, and it is not true about the United States of America. We need well-defined rules, or we will become an ill-defined nation.
But I still won’t play Monopoly with my wife. And there is no rule against that.