Is Eight Enough?


Cara L. Gallagher, weekend contributor, and James Coll, adjunct professor of Constitutional History at Hofstra University

The vacancy on the Supreme Court that materialized with the death of Associate Justice Antonin Scalia this past February, and endures into the current term that began last week, has Americans perplexed about the kind of Supreme Court we want to have. It also has us revisiting the kind of Supreme Court the U.S. Constitution requires us to have. These distinctly different contemplations, although both deserving of our attention, are all too often mistakenly confused as being the same concern.

Given the choice, I favor a nine-member Court. The downside of an even-numbered bench has been evident to most Americans as recently as the last term when important decisions about executive powers, immigration, and unions were left with 4-4 deadlocks for us to see the obvious benefit a ninth justice on the bench would have provided.

Yet just because I would rather have—and simple math would prefer—a fully-staffed Supreme Court doesn’t mean the Constitution requires it.

Despite the near-permanence of the nine-member Court, we have often seen cases where justices have recused themselves for a variety of reasons including sickness, conflicts of interest, or involvement in a case as it moved through the lower courts. Creating a temporary eight-member Court didn’t produce constitutional crises in those circumstances. And it hasn’t produced one today.

While the supreme law of the land doesn’t mandate how many justices sit on the bench, it is clear about who gets to appoint them. The President “shall have power,” Article II states, to appoint “judges of the supreme Court.” Whether a Chief Executive has three years or three days left in the Oval Office, it is their prerogative to exercise this power.

Our analysis then brings us to the check-and-balance role of the legislature in the task of filling vacancies on the High Court. Article II requires that once an appointment is made by the president—and before the appointee gets to don the black robe of a justice—the U.S. Senate gets to bestow their “Advice and Consent.”

“Advice” has been defined by one source as “guidance or recommendations concerning prudent future action.” If “consent” is the ability to approve an appointment, it would be logical to confer the ability to deny one as well.

Yet Senate Republicans are making the case concerning our current judicial-vacancy limbo that even in denying formal hearings and a vote for a presidential appointee they are fulfilling their constitutional obligations. Critics are not so convinced.

So who has the Constitution on their side in this Constitutional dispute? While those who have been disapproving of the Senate delay tactic point our attention in the direction of the Article II clauses detailed above, Article I provides an understanding to resolve the question. In this circumstance, we might be surprised to learn that the power to decide when the Senate is obliged to act has been left with the Senate.

There is not a single clause in the Constitution that compels the Congress to perform one of their functions when they choose not to. “Each House may determine the rules of its proceedings,” Article I states, empowering the respective chambers of the Congress to unilaterally decide how they do or—in this case do not—exercise their powers.

There is only one clause in the Constitution that compels and quantifies an active response if a branch chooses stagnation or motion. And it is an obligation on the President, not on the Senate. “If any Bill shall not be returned by the President within ten days,” Article I mandates, “the Same shall be a law.” Our Framers lodged this device to time-limit a stalling president when he chooses to not exercise his law-making responsibilities after the act has passed both houses of Congress. It wouldn’t have been heavy lifting for them to pen the same time-limit into Article II to strong-arm action from a stalling Senate when they choose to do the same with their confirmation responsibilities. The fact that those who crafted our fundamental law choose to put the time-limit device in the area of the Constitution relating to law-making and omit it in the area relating to appointments informs us that the limit doesn’t exist where it isn’t expressly stipulated.

Our politicians, those entrusted with the power to nominate and approve members of what was designed to be a non-political branch, are clearly playing politics with how they fill the Court—just as the Framers envisioned. Since the Constitution does not provide a remedy for controlling their action and inertia, they thought we, the people, would hold them responsible when they can’t get the job done. Even if the result—and our own inaction—leaves us with a not-so-temporary eight-member Supreme Court.

~James Coll

Put quite simply, eight is not enough. If we’re playing the numbers game, endorsing the case for an even-numbered Supreme Court requires us to remember how effective the Court was in 1803 – the last time there was an even number of Justices on the bench. An odd number of judges on any bench not only makes sense, it has been the model the U.S. Supreme Court has followed, with rare exceptions, for 147 years. Read Professor Turley’s piece on the history of number of justices and the need for more than nine.

For obvious reasons, an odd number of Supreme Court Justices function to prevent tie votes. Matching results prevent critical issues of urgent national importance from settlement. The lack of instruction that come with majority opinions leaves states and citizens confused, creating a patchwork of myriad policies across the United States. At present, cases are likely being withheld from the SCOTUS for fear the investments in time and legal costs would be lost in a split decision. This is likely how we’ve ended up with a paltry docket of cases this term compared to the start of previous terms.

An even numbers of Justices defies logic. Cases that result in 5-4 decisions are often the ones that have the greatest impact on our national identity and critical issues of social justice. Take for instance the last three terms in which scores of Americans were directly impacted by the decision of just one Justice in cases on affirmative action, access to abortions, legislative redistricting, same-sex marriage, race and housing, free speech, contraception, and campaign finance. To say we can function with eight justices and risk tie votes in these high-stake cases depreciates the role the Supreme Court plays in our day-to-day lives and the intent of the federal judiciary as prescribed by the Constitution.

Questioning why the Framers didn’t codify the exact number of judges and how long it should take to replace them, when such quantifiable text exists in other parts of the Constitution, mischaracterizes the Framers intent of Article III. Article I, where we find the aforementioned time limit device, has the operational language it does in order to activate the very branch of government that is its subject: Congress. The mobilizing language in Article I bolsters the Framers’ intent of legislative efficacy with its can-do clauses, unlike Article II which speaks almost in the same length about the powers of and restrictions placed on the President. Compared to the other two, Article III’s significant lack of text, coupled with its roots in Federalist #78, amplify the notion that this branch – the judiciary – was the “least dangerous” one that could seemingly “annoy” the political rights that flow from the Constitution minimally.

Why then would the Framers put a safety valve like a time limit on how long Mitch McConnell and the Senate Judiciary Committee should take to assemble a hearing and confirm Merrick Garland? Further, should we even be looking to the Constitution for guidance on this matter? After all the absence of constitutional instruction forced articulation of the Supreme Court’s powers in Marbury v. Madison and subsequent ratification of eight judiciary acts.

Nine is not only a good number of judges, it’s worked productively since 1869 when Congress made an odd number the law. In extraordinary situations, where a justice recuses from a case for a variety of reasons, no, we did not find ourselves in the throes of constitutional crisis. However, there’s always the remote possibility that we could find ourselves in such a situation next month if hypothetically we have a swing state fighting over the recount of ballots. Crisis would be an understatement if there’s a 4-4 split on the future of the presidency.

But I should think we can do more, actively, to thwart crisis rather than simply celebrate its absence. I think we deserve more, if nothing else the right to hear Merrick Garland answer questions from both Republican and Democratic Senators on his record, his interpretation of the Constitution, and his vision of the future of the Supreme Court.

~Cara L. Gallagher

James Coll is an adjunct professor of American and Constitutional history at Hofstra University and the founder of, a not-for-profit formed to promote non-partisan civic education and political reform in our state.

Cara Gallagher is a writer who covers the Supreme Court and federal courts for C-SPAN. She is the founder of @SupremeBystandr

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

49 thoughts on “Is Eight Enough?”

  1. Anita Hill who accused Justice Clarence Thomas is at again

    Hypocritical Anita Hill Hagiographer (and Former NYT Head) Abramson Slams Sex Accusations vs. Clinton

    Abramson’s dismissal of sexual harassment charges against political figures is particularly hypocritical from the woman who co-wrote “Strange Justice,” a smear job on Justice Clarence Thomas that sided with his accuser, Anita Hill. Abramson hailed Hill as a heroine for testifying against Thomas in a Guardian column tied to a fawning HBO special: “HBO’s Confirmation shows how women were treated in Washington. Has anything changed?” In that same piece she called both Anita Hill and Hillary “feminist icons” and cast them as victims of the white male establishment and the “Republican attack machine.”

    But her tone towards women who accuse powerful men of sexual harassment changes is drastically different when it’s Democratic statesman Bill Clinton under fire:

    She tried to weasel away by saying: “I am not judging the underlying accusations against Bill Clinton by the women, just Trump’s insistence that Hillary Clinton has enabled and covered up her husband’s sexual misconduct.”

    1. When you consider Hillary’s part in this four decade old pattern of behaviour one can not escape casting Hillary as a psychological and emotional sex predator on her own with the support for Billy Bubba going in t directions. Both are activists and both are enablers. The inescapable conclusion that supporters of Hillary especially among the women are victims no matter if directly targeted or targeted as too weak to just say no.

      One has to have contempt for the two primary villains Hillary and Willy J. but feel sorry for those who allow themselves to become victims and in doing so abandon their ‘sisters.’ As for the organized groups that twist in the wind spinning their webs of deceit – how pathetic can you get? Far too much to be excused as victims of Hillary and Bill. They act openly and knowingly and then have the gall to support the two of them and encourage their pattern of sick behaviour. -This last group are not victims they are co-conspirators.

  2. An important case has been taken up by the Court in this session that will determine if political appointees can be sued by those harmed by their unconstitutional actions. This case might have been heard by 8 justices, but 2, Kagan and Sotomayor have recused themselves.

    Have any recused themselves after being wined and dined by those having business before the court?

  3. Very provocative post. Thanks for it.

    1. Eight are not enough and probably nine aren’t either simply because of the volume of meritorious issues rejected by the Court each year. Then again, I don’t know that nineteen aren’t too many. At any rate, an even number of Justices is worse, i.e., “defies logic,” when a tie occurs and exponentially increases the power of the DC Circuit’s opinion in suits against the federal government.

    2. Although it may be true, I don’t think any of us can know that the Framers foresaw legislative procedure (and chaotic, political delay) to the extent that they intentionally omitted a time frame for Senate approval or denial of appointments. In fact, it can be just as easily argued that they – mostly businessmen ill-prepared or unworried about the minutiae of a foundational law as opposed to its basic tenets, who probably were itching to escape a Congress full of egos to match their own – simply wanted an expedient consensus that served their individual and local interests on the final draft and then sent it out for ratification so they could be done with it. Remember what Senator John Conyers has said: nobody in Congress reads the entirety of bills placed before them. Why would we think differently of a group of businessmen in coats, waist coats, breeches, and stockings?

    3. Would sorting out this kind of problem have been considered by the Framers to be within Congress’s rule-making obligation? I don’t know that it would have been because such a rule affects not only Congress but the Executive power – a co-equal branch – and prevents the Judiciary -another co-equal branch – from performing its duties of judicial review. Marbury v. Madison, enshrining judicial review by striking down Section 13 of the Judiciary Act of 1789, likely wouldn’t have been foreseen by a majority of the Framers.

    4. Finally, in light of judicial review, it seems to me that the omission of a time deadline within which Congress must act is appropriate for determination by the Supreme Court – the final arbiter of the Constitution – and not a political question to be left to the Senate to sort out with a new rule.

    Although I’ve never researched it, it seems to me that the Supreme Court, if handed the issue, might determine the Senate’s advice and consent or denial must occur impliedly within a “reasonable time” as in any other public or private obligation triggered where a time to act has been omitted and no legislative history speaks to it.

  4. So, Michael, if you could amend the Constitution, what changes would you make? Just how would you like the US Government to be shaped? More like a parliamentary system, where the lower house pretty much runs everything? Or what?

    By the way, the name-calling you engage in, substantially weakens your case. Just because you don’t like Pelosi or Ginsburg, it doesn’t help to think up overly cute derogatory nicknames.

    1. If Mme. Justice Ginsburg wishes to be treated respectfully, she can behave well. She doesn’t, so Hag Justice it is.

  5. The term or two words: lame duck. These do not appear in the Constitution. Would Obama be “lame” if a missile with a nuclear bomb hit the West Coast and Obama deferred to the next President to respond? Yes, he would be lame. But the criticism and the nature of “lame” would be held to be a different kind of term. Speaking of term. A President has one. So does a Senator or House member. During their terms these three species have an obligation to do their jobs. The Senate should vote on this Merrick Garland dork and vote yea or nay. I do not like him. Nay would be fine with me. But no vote is a lame thing. Mitch is lame. Mitch is not a duck. That would be an insult to a duck. Mitch cannot even quack. Mitch is a hillbilly and needs to get into country music or somesuch and get out of government. Mitch is a disgrace to the human race.

    1. The answer is simple. All it takes is for people to get off their couch potato butts and commence a movement to amend the Constitution. But since most people are lame and lazy the prefer to do ignore the whole thing. The ultimate responsibility in self -government belongs to the ultimate source of power. The citizens. Each and every one individually. Ergo Sum we live in a nation of lame do nothings. Except for complaining. And some people who are not so lazy notice that curious fact of life.

      Welcome to the USSR citizens you brought on yourselves.

    2. What DoneDeRone wrote. Mitch, Clinton and Trump are sleazeballs. Voting for any of them is aiding and abetting.

      Speaking of lame, Obama’s continuance of white-collar, empire-building strategy vastly underestimated the resolve of Vladimir Putin against the western putsch in Ukraine and Syria. Clinton or Trump will continue that mistake. Sending our children to war seems to be a national pastime. Won’t it be fun to see how they deal with Russia’s and China’s military technology? Be popcorn-ready because “the bombing will begin in five minutes.”

      1. They would have to base it on an suggested amendment. There is nothing anywhere except the time limit on Presidents to sign a bill. Under 9th and 10th Amendment it’s a power not granted. The Senate and the House are given the option of running their own operation and it’s worked for 240 near enough years. No one has advanced an amendment ergo sum having such a time limit is not favored by most.

        Makes sense for what’s good for one group now is bad for them later and it’s a handy speed break. That works until you get an unopposed dictator and now we’re faced with the possibility of a successor.

        I hear more and more from the left “Constitution? what is that? Oh yes. That is neat history sort of…. nothing more.”

        Carping about one little portion does nothing except divert attention from the real issues. Do you vote for a Socialist Dictatorship oir a Constitutional Republic And if the latter do you start supporting it instead of watching reality TV? Citizenship is a responsibility and for every right there is a responsibility.

        Left = Government over Citizens or just people with no personhoods.
        Center in a Constitutional Republic IS the citizens as the source of supreme power.
        Right = Citizens over government employees

        It only wants people that want to be citizens to make it work.

  6. Professor Turley

    Are you reading this?

    You have attracted an embarrassment of morons.

    1. O Henry – only a moron would pick O Henry as his/her nom de plume. You are an embarrassment to writers everywhere.

      1. Oh, I don’t know, the nom de plume ‘bam bam’ doesn’t instill much confidence either, does it?


        Your quips are tired, PS, much like Spinelli’s; yet they are far above Darren’s contributions.

        You got your cites lined up, the ones you never offer, yet chastise others for the same?

        Now, before you go off, PS, I’m not talking about cites for this particular dribble of yours. I’m talking about where you have claimed to cite references — yet they are not there.

        Tell bam bam “Hi”.

      2. Do you have something against early-20th century short fiction or something against candy bars?

  7. Is there a minimum?
    Imagine HRC gets the White House and the Senate remains with the GOP for at least 2 years and RBG retires or just plain passes.
    Why wouldn’t the GOP just keep it and roll with 7?

    1. Good Point the number on the court is also not a requirement. The same applies no matter who gets elected President. Von Ginsburger and the other fascists can’t last forever. …..think I’m using the word gratuitously. I assure you I am not. small f it means take and keep control by any means possible and available. And since the Rinos are nothing but the right wing of the left it fits perfectly.

      PS It helps to use real definitions not those of the left.

  8. Turley, in the linked article, said this: “We also have had repeated conflicts over replacing justices because the importance of each jurist is so overwhelming on such a small court.”

    That’s not the problem. The problem is Marbury v. Madison, which started the process of Congress relinquishing its role. The hacks who find their way to the Legislative branch now hand all their constitutional responsibility to the Executive (the administrative state) and, ultimately, the Judiciary (which has endorsed the creation of the “fourth branch”). I spit on John Marshall’s grave. But really, I hold in contempt the presidents who accepted Marbury, bringing us to this pass. The Court should be the least of the branches, as the Federalist articles promised. These lawyers in black cloaks should have little purchase on our lives, however many there are.

    Is there a way to force Congress to take up its constitutional role (which is the only hope)? Nope.

    So the absolute power of one man (Anthony Kennedy, once in a while swapped out by Roberts) over our lives will not be reversed if the Court remains at 9. But to expand it is to take endorse the abdication of the Congress, empowering those wretches in their fecklessness. Maybe Turley, then, is right. We’re stuck with this corrupted perversion of the Framers’ original intent, and have to deal with it as it now exists. I hate it.

    1. Don’t vote for an incumbent especially a Democrat or a Republican. With damn few exceptions they are the ones responsible along with their enablers they are two halves of the same SINGLE party system run by the progressives, At this point it’s a clear choice…

      Left wing fascist socialist autocracy or a chance with the lottery candidate the outsider Along with that dump the current leadership of the Republican party the right wing of the left and maybe the outsider along with the few worth saving can build a Constitutional Republic Party. Those few only have to change their affiliation. Our job is don’t support the left and turn your backs on them. that’s the current game playing leadership of the RINOs all the way out to George Soros. And don’t forget the Clinton Enablers who we find out are victims of Hillarys 40 year old sex based assault.

  9. The term “Politics” is amoral. It can be used to harm and divide Americans -or- it can be used to unite and help Americans. It’s not necessarily a bad thing, it’s how it’s used.

    The founder of the Republican Party, Abraham Lincoln, once said “a house divided against itself cannot stand”. Today there are few politicians using politics as a tool for good to unite Americans of different backgrounds and different religions to make the nation stronger.

    Our divisive politics, currently tearing the nation apart, probably won’t end until we enact a campaign finance system that gives greater representation to “human persons” than “corporate persons” (although corporations should be heard also).

    According to the Founding Fathers, it requires a constitutional “rule of law” model of government (which was designed on the previous 2000 years of blunders in world history) – the same model we destroyed with our unconstitutional overreaction to the so-called “War on Drugs” and “War in a Tactic” after 9/11.

    Once Congress, presidents and the courts start representing “human persons” again, the politicians will be more united in their goals.

    1. RB — telling it like it is. As Gore Vidal perceptively observed: “We only have one party: the Property
      Party – and it has two wings”.

      Note that right-wingers can’t refute progressive thinking, so they try to dismiss it via denial – always denial, smear, shooting the messenger, self-righteous indignation, questioning one’s sanity and/or patriotism. Their way always prevails because the masses are kept ignorant and narcotized.

  10. Excellent article.

    I completely agree that our country is playing politics with the Supreme Court – the President always plays politics when he appoints one, Congress always plays politics when they approve, deny, or refuse to consider one, and even the Court plays politics in discussing cases. Perhaps politics will be more a part of their individual decisions, as well.

    This is a dangerous trend. Both parties do it, and the same argument holds true against both.

    1. Great post but……what makes you say both parties instead of the faces of a single party?

      1. Because the Dems do the same thing. You may not recall, but this is not the first time politics has come into play with appointees. And the Dems have made exactly the same argument, that a lame duck lacks the mandate to appoint to the Court.

        Politics seems to have a corrupting influence, regardless of the party involved. There really is no high moral ground in really entrenched establishment.

        But as for politicizing the Supreme Court, to quote Dune with its treacherous layers of intrigue, “that way lies danger.”

        1. you make my case rather well. Government Party with two faces both working together including the street theater called elections. Including the destruction of any who dare think differently or say forbidden words and think forbidden thoughts like Constitutional Republic.

  11. Since 9/11 we no longer have a “constitutional democratic republic” – that happened without a constitutional amendment and without even a whimper. The Judicial Branch of government simply refused to do their duty of providing timely “Judicial Review” – instead of checking the political branches they became subordinate to the co-equal branches.

    The slippery slope appears to have started, by gutting the 4th Amendment, in the late 1960’s with cases like “Terry v. Ohio” that violated both the letter & spirit of the 4th Amendment. After 9/11 we gutted the remaining amendments in our Bill of Rights.

    Refresher: the U.S, Supreme Court does NOT have the authority to amend the letter & spirit of individual amendments, neither do presidents. The U.S. Constitution is also a wartime charter, designed to be followed especially during wartime.

    What’s amazing is none of the major 2016 presidential candidates are talking about how to restore our American style republic. Our current model of government is a hybrid between a World War Two Italian oligarchy and a Cold War era Eastern European police state (communist model).

    1. One only has to examine the Patriot Act in the section on arrest or apprehension authority to back up Sub tract’s post. No ‘probable cause’ any more but a set of ‘undefined or limited’ rules that use ‘suspicion of’ in it’s place and then offers zero Bill of Rights and Civil Rights protection. Dec 31st last that was expanded to include ‘suspicion of supporting’ a way of saying accessory before or after the act of another.

      Some ask why do I say the selection is vote one way for 100% positive socialist autocracy and the other way is throwing the dice or buying a lottery ticket to retain a Constitutional Republic – for a while longer.

      At his late date does it really matter? Yes more than ever as there are only two choices. Perhaps all those women supporters who are really nothing more than victims of a predator named Clinton and I don’t mean Bubba should wake up and say not to being victims.

      Perhaps all those who signed up as volunteers for military service at age 18 in exchange for college money should also wake up., Cannon Fodder now includes Baby Factories

      Perhaps all those who don’t remember ‘enhanced taxes…..

      Hell the list is endless. Should be a no brainer. 100% certainty versus slim but not none.

      1. one only has to have a functioning ability to read and THINK (even if just a little bit) to recognize that

        RB is correct.

  12. What’s missing from both arguments is an explanation and rationale for the founders setting the first court at an even number. Did they intend to limit the power of the court to decide closely split positions? If they did, that would be consistent with the high bar they set to amend the Constitution. If not, we’d be left with the unlikely possibility they couldn’t do simple math. Despite arguments to the contrary, a closely split court decision rarely settles any issue. It definitely sets law, but the arguing continues in an attempt by the four side to find a case that will reverse. Thus, the framers would be on solid ground when they allowed for evenly split results. That way, the sides would be forced to argue and frame their positions until they could achieve at least a two vote majority. Turmoil? Definitely! But no more turmoil than we currently experience–and consistent with what a representative democracy is likely to produce.

    1. Sub Tract

      Why did the founders set the first court at an even number? Well, the founders were the 1% of their day. As right-wingers ( excuse me – conservatives ), they didn’t want for progress to be too easy to come by. Also, like today’s 1 %ers, they believed that Democracy is for sissies – ergo, the more S. ct. justices, the more likely a just society just might become a reality. That wouldn’t do. Ask R.E. Lee & company.

      1. The first and the oldest constitution since the few that were tried in Greek and Roman Days.. Worked for near 240 years which is 40 over the average of all governments and one helluva a lot more than any of the socialist versions. Put a smiley face here. Unless you are from Virginia.

  13. One detail I do not see in any of the commentaries is that the Senators were elected by POTUS, which means that in a way they had terms. Later on we decided to have them elected by popular vote. That was the time that we should have taken in consideration all the possible problems that could arise and prepare appropriate regulations.

    1. That one confused me. I can’t find any references to the notion that Presidents elect Senators. In the past they were selected by Governors and State Legislatures. The rest is beyond me and beyond Google and wikpedia. The point on getting a two vote majority of eight is well put. With only 100 cases a year and no time in real supervision of appellate and circuit courts – who run amok as they will – there should be plenty of time to deal with four four ties.

      In the meantime the thought came up with a four four and no new President Selected and the old one barred would the old Vice President fill in? I’m sure Biden would try – another disaster. Speaking of yet another groping clown who is getting a free pass from the Media.

  14. Eight’s too many. Delete from the budget the line items for their clerks, their miscellaneous staff, the heat and electricity in their chambers, their office supplies. Pay them in potatoes once a year.

    1. Seven or nine. Not only costs but other reasons. Too rapid a turn over defeats one purpose. The other reason to have nineteen is have one watch dogging the circuit and appellate courts and the courts currently not under their control for some strange, weird reason in the Fourth Branch. In the even of a tie the nineteen could convene to break the tie. A tie vote is not such a bad thing as the rule is a majority to go one way or the other. four of eight is not a majority but five is leaving five to three. Much harder to get and it speaks to the importance of the case being heard requiring in effect a super majority. We had five to four in favor with what was supposed to be a court from ‘our side’ when Money was declared free speech. No one bothered to ask what and how many existing rights were being violated to provide that single new right. Which brings up another question. Are they not supposed to uphold existing rights in their deliberations? Apparently not.

    1. thank you despite spelling there as their. I am not happy without a spell checker and then I check the spell checker.

  15. What the article didn’t say.

    The answer to any question may take one of three forms. Yes, No, Compromise. Which makes a total of two wrong answers and one right answer.

    More importantly their are no requirements to be a Supreme Court Judge except the two stated. Nominated and consent. Advise comes before the nomination normally but also may be the reason for voitng up or down. The Representatives are left out of it

    No other requirements? Exactly. No requirement to follow the ‘outsider’ lists from the ABA. They are not part of it at all No requirement to be have a law degree or any training in law. A side note on that later. No requirement as to age, or any of the -isms and -ists. No requirement as to amount of time in the US as a citizen no requirement to be a citizen.

    It could be the President of Mexico or with this President Raul Castro. It could be a 12 year old from Mars.

    Common practice is the ABA route since most politicians are attorneys. But most Presidents are not.

    There is NO requirements for litmus tests.

    There is no requirements to have a nominee appear before the Senate. Committee or the whole body,

    In this case the Republican controlled house for purposes of their own is delaying past the Lame Duck month. But if worse comes to worse and Hillary assumes the role and becomes Obama II they still have no requirement to do anything. Assuming they control the Senate.

    Typically this body does 100 cases a year without them the extremely political Circuit and Appellate Courts have no judicial check. But to think of it they don’t have to wait but can reach out at any time.

    For example they could declare budget busting continuing resolutions or other acts of congress as anti-constitutional.

    The could declare the balloting in Virginia not acceptable until all the votes have been examined for fraud.

    So worse comes to worse is Hillary AND the Senate as Democrats.

    Could it be worse? Certainly with Benita Pelosillyni waiting in the wings.

    So lets apply all this to the Act of Succession which is Part II.

    4-4 decision or even a split decision of the Congress would stop nothing. 20 January 2017 Obama is out. Eight year limitation rule. The next in line is the President Pro Tempore of the Senate. The Chain of Command is unbroken.

    Unlike a SCOTUS Judge the Presidency is never empty.

    But they could declare the Act of Succession unconstitutional. Why? After the Speaker and the Pro Tem the next in line is the entire cabinet. All of whom have received exactly ZERO votes. Even the VP who took office with ONE vote that of the being selected by one candidate for President has that comfort. Cabinet Secretaries have NONE.

    The answer would be some combination of those with votes So who has the most votes and the most executive leadership experience or a combination of those two? Senators, Governors, Representatives. In that order.

    The court could also rule that any successor has to be of the same party selected by the nation as a whole in order to forestall a palace coup. That’s where thoughts of Benita Pelosillyni come to mind.

    Having presented all of that time for comments and perhaps a new article? As the man used to say…Page Two?

  16. The Framers left out a lot of things in the Constitution, this was one of them. George Washington had to invent the office of President. Marshall invented the powers of the Supreme Court. Although I am not happy with 8, I would be okay with 7 or 5

  17. I agree with you on most of your positions even though I lien conservative and not liberal. You remind me of a time when the two major parties could compromise for the better of the country and something that feels impossible with progressive any party. Why did the Founders not have the AG chosen by SCOTUS? To have the POTUS chose look what we have now with the DOJ & FBI playing politics.

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