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Advice and Consent

A Nation Divided Cannot Stand. Constitutional Judicial

Appointments Must Require a Two-Thirds (2/3) Senate Vote.

Open Ballot Access and Equal Political Speech

By Rich Stevenson ©September 20, 2020

Interim Acting Male Co-Chair of the USAIVA and the Jefferson County KYIVA

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We The People.... Did you notice our elections? In Blue Urban Areas! In Red Rural areas! General Election votes for Presidential Winners average about 50% in the past five elections. Partisan opponents have become hated enemies to both sides, especially under Trump. Most Presidents assume they have a 100% mandate to rule as they please. About 50% of voters lose to enemies and are denounced by winning voters under Trump delusion syndrome. We have a severely polarized nation. We must do better to avoid civil war.

The divisions today are everywhere, in the people. In the parties. In the issue groups. In the numerous partisan think tanks. In the news (CNN v. Fox News, etc.). In the radio talk shows. Much worse in the Internet conspiracy wars. Conspiracy theories proliferate from left and right "Wingnuts." In congress, the McCarthy hearings of the 1950s are constantly updated in the left-right two party struggle. Tea Party. Main Street vs. Wall Street. In the self-serving ultrapartisan Trump White House versus the rule of law. All at odds with opposing factions in the great partisan divide.

Equal input by two of the three branches of government to choose a Supreme Court Justice would be supportive of the separation of powers intended by the framers of the Constitution. We need to make all three branches equally powerful and interdependent as intended by the founders. Appointments must not be driven by partisan power or advantage. A two-thirds vote would take the decision out of the hands of any simple partisan majority of the moment. The temptation to attempt to legislate by judicial decision, by stacking the court, would be greatly reduced. Consensus of both sides would be required for each two-thirds Judicial appointment. 

Important votes in the Constitution require a two-thirds vote to make important Legislative decisions in every interaction with the Executive Branch as written into the Constitution. A simple majority to confirm a lifetime Supreme Court Justice seems to me to be against the spirit of the Constitution. The intent of the founders would have been a two-thirds Senate vote to confirm a President's Supreme Court nomination. My opinion. What do you think? (Your Voice)

Article II (The Executive Branch), Section 2., Clause [2] requires two-thirds of the Senators present to make treaties. Followed immediately with other powers the Executive has with the advice and consent of the Senate. To me, this implies that advice and consent of two-thirds of the Senators present is also required for all the other appointment powers specified in Clause [2]. The rule indicated would be a two-thirds vote as intended by the framers of the Constitution to nominate a lifetime Supreme Court Justice. The Judicial Branch is one third of the balance of powers indicated in the Constitution. Such a momentous consent would seem to require a two-thirds consent of the Senate in order to equal the Executive Branch's power to nominate a lifetime Supreme Court Judge. The language of the Constitution is quoted below:

“Clause [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.” [Emphasis added.]

When a nomination fails a two-thirds vote, that would be a strong indication that the nomination was not advised by or consented to by the Senate. The Senate has the power to not consent to a nomination not considered to be in the best interests of the country or its people.

The left-right struggle, battle, has gone on since the Warren Court, 1953 to 1969. Liberal vs. Conservative. White priviledge against equal justice under the law for former slaves. Warren was the first Justice not appointed by New Deal Presidents, Franklin D. Roosevelt and Harry S. Truman. (Earl Warren *)

* https://en.wikipedia.org/wiki/Earl_Warren#Appointment .

How long the abrasion? “Impeach Earl Warren” was a huge source of controversy throughout his tenure as Chief Justice. He led the charge to overturn the "separate but equal" doctrine in the law. The 1954 decision to desegregate schools was the beginning. The "one man, one vote" doctrine was made established law. This was a "liberal" court accused of legislating from the bench. It was portrayed as an "activist" court. What do you think? Read the Wikipedia article. Do some research on the Warren Court. Did the court bring needed change?

The major issues today that divide us are Abortion (Prolife and Prochoice adherents), Guns (safety and rights), and Religion (Science versus Theocracy as preferential “truths.”). The far sides of all three issues are nearly ready to go to war to win. Eighty percent of the people simply want an end to partisan strife. Most are more moderate, willing to have a conversation to seek consensus and compromise in the name of liberty and justice for all.

The strain of self-righteous strife can end. There are many solutions to end left-right partisan warfare and have peace. We could eliminate the ability to get a left or right one-issue nomination through the Senate. No justice or judge in the Federal Court System should be confirmed with a 51 vote left or right partisan nomination that is totally unacceptable to 49% of the Senate. The Senate should be forced to seek consensus in a two-thirds vote to nominate all Federal Judge nominees that are acceptable to all sides. In law, in life, a good settlement agreement between legal adversaries satisfies neither party (everybody should feel "screwed"). A good settlement satisfies all sides with a solution that resolves differences. We can live under a system that provides equality under the law. Moderate Judges can better serve justice, and the public good.

A two-thirds vote will require Presidents to nominate judges who are acceptable to two-thirds of the Senate and to a broad majority of our diverse population of citizens. What do you think? What rule is best for the public good? For Liberty and Justice for all? To preserve our nation for our posterity?

(Your Voice)  (Top of Page)

Write, phone, text, email, tweet to journalists and civic leaders demanding a peaceful and conciliatory nomination process. Cite this article and request support for a two-thirds vote for all new Federal Judges. We must be the change we want. “We must become proactive good citizens.” What we want we can have. Occupy Elections! Unite America.

We must take power from (and within) the D and R parties to have open elections so all voters have a reason to vote. Elect pro-democracy candidates we put on the ballot to defeat establishment D and R candidates. Occupy Elections. Everybody Vote! “We must become proactive good citizens to have a voice in public policy.”   Sign the Pledge  Print/Share

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