Berks Barrister Summer 2018 - 32

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From My Perspective

IS IT TIME TO SEE REALITY?
If So, What Is Reality?
By John J. Duffy, III, Esquire

T

o those readers hoping for a mini-treatise on an ontological
exploration of the nebulous concept of "reality," I would ask
that you not continue reading this article. To such readers,
however, I would offer hearty thanks for their faith in this writer
to have the ability to tackle such a topic. Of course, if such readers
had stopped reading as requested, that offer of gratitude would go
unnoticed. But really, did they actually think that I could...Maybe
I'll make that the focus of my next article in this space.
To those still reading, I would state that I intend in this piece
to address the question of whether it is time to "see reality," amend
the Constitution of the United States, and thereby provide for
the direct, popular election of justices to the Supreme Court of
the United States. This question has percolated to the top of my
thought processes at this time as a result of the recent Supreme
Court nomination. As an aside, it should be noted that Supreme
Court nominations constitute great sport for law-nerds who
revel in following every word of the senators on the Judiciary
Committee as they either ask the nominee questions that have the
legal and philosophical fiber of jelly doughnuts, or questions so
specific and barbed as to allow the nominee to refuse to answer in
avowed deference to a higher ethical good.
Many senators apparently feel compelled to spend most of
the time allotted to them for their "questioning" in the making of
speeches, which would seem to be a practice quite predictable in
light of the sometimes-large TV audiences viewing the hearings.
If you have ever watched C-Span, and witnessed the delivery
by a senator of an impassioned speech on the Senate floor to an
essentially empty chamber, which becomes quite evident as the
camera pans away from the senator, you will understand this point.
Eliminating these Senate hearings would also eliminate, therefore,
an event that brings great entertainment to some, but one that to
most has the thrill of a televised chess match.
Why do I pose the question set forth in the second paragraph?
Initially, I would reiterate the frequently made observation that
a person nominated and confirmed to a seat on the Court could
serve for decades, and thereby exert an influence on rights and
32 | Berks Barrister

issues in this country long after the president who nominated him/
her has left office. Should not the people have a more-direct role
in the selection of an individual who very likely will have a greater
impact on them than the person who nominated that individual?
I would offer, however, as further support for the posing of this
question, an assertion that is based upon an analysis of certain
parts of "The Federalist Papers." In brief, I would suggest that
the arguments set forth in the "The Federalist Papers" for the
constitutional provision of nomination by the president, with the
advice and consent of the Senate, are neither supported by, nor
representative of, the modern reality.

Article II, Section 2, of the Constitution of the
United Stated provides, in part, that the president:
...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...
In The Federalist No. 76, Alexander Hamilton
writes:
The sole and undivided responsibility of one man
will naturally beget, a livelier sense of duty and a more
exact regard to reputation. He will on this account feel
himself under stronger obligations, and more interested
to investigate with care the qualities requisite to the
stations to be filled, and to prefer with impartiality the
persons who may have the fairest pretensions to hem...
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Berks Barrister Summer 2018

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