Our Constitution provides for three branches of government. There is the Legislative Branch which is to make law. There is the Executive Branch which is to administer the law. There is the Judicial Branch which is to rule on disputes within the law and render opinions.
Today we are focused on the Judicial Branch because the Executive fulfilled his constitutional privilege and nominated a person to become a member of the Supreme Court. Please note, that the concept of filling a vacancy is not a Constitutional mandate but a conventional mandate because the Constitution does not have a required number of justices to be seated at any one time.
The Constitutional procedure is that the Executive will nominate and with the advice and then consent of the Senate that the proposed nominee become a justice. There are no requirements, other than the above, for a Supreme Court Justice. There is no age, gender, race, occupation such as lawyer or judge, or any other requirements that would constitute being qualified. Those who are giving opinions as to who is or who is not qualified are simply giving personal opinions and not Constitutional requirements.
Some are saying that the current procedure for nominating the latest justice is an illegitimate procedure. This is not a statement rendered on the procedure established by the Constitution, but only on a procedure concocted in the minds of any individuals who would render this opinion. Even the idea that the nominee must appear before the Judicial Committee of the Senate and be graced by receiving their approval and blessing, is not a Constitutional requirement but a procedure adopted by the Senate that has become a part of their determination as to how advice and consent is to be given. Constitutionally, consent could be granted in many different ways, such as a vote the day after nomination by the full Senate, a committee of some number appointed by the Senate, or any other procedure adopted by the Senate as a means of granting consent.
The nominating process and advice and consent process gives great latitude to both the Executive and the Senate. There are no criteria for nominating and there is no procedure for advice and consent. There is however one Constitutional requirement placed on the government in total and for our purposes, placed on the Senate in particular when they are going through their conventional procedure for giving advice and consent.
The Constitution specifically states:
Clause 3 The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
In their Constitutional duty of providing advice and consent to the nominee of the Executive, no religious test, such as whether or not the nominee holds a certain faith or is a member of a certain denomination, can be applied as a qualification. The only exception would be if that religion prohibited the nominee from affirming that they would support the Constitution.
In addition, it is critical that we understand that the nominee is under no obligation to adhere to the doctrine of stare decisis. Stare decisis is the legal principle of determining points in litigation according to precedent. This is strictly a legal principle and is not found anywhere in the Constitution. The reality of stare decisis is that it is detrimental to good law. If the point in litigation is Constitutional and sound law, it should stand on its own. If the point in litigation is not Constitutional and sound law it should be discarded and not used to perpetuate law that is neither Constitutional nor sound.
As we Americans listen to the pre-hearings rhetoric and what has become political posturing by the politicians during the hearings, it is imperative we all understand what is and what is not Constitutional and what is and what is not political posturing. This is a time for we the public to scrutinize the wisdom of the conventional process the Senate has adopted as their method to fulfill their Constitutional duty of advice and consent. A question we should all ask, is does this process produce individuals that will adhere to equal justice under the law.
Another great question to ask ourselves during this process so we can make an assessment on what is and what is not good government, “Do I believe the nominee being questioned is more likely and more capable to provide equal justice under the law and would adhere to rendering opinions and not making law as a justice per the requirement of the Constitution, when compared to the persons asking the questions and making the statements.” We can than determine if the particular Senator is seeking a fair minded individual who will have as their prime motive to render equal protection under the law, or if the Senator is seeking an individual who will fulfill the political goals of the Senator by making law and not rendering opinions, so the Senator does not have to take a political stand and jeopardize their re-election, because they had to vote on laws, which is their Constitutional duty.
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