You are correct about the ‘shall’. The proposition remains however. SCOTUS is wiped out, the president nominates a new court and under your interpretation the Senate has the right to refuse to even consider those nominees.
If your interpretation were correct then the Judiciary is not an equal branch of government because congress could simply wait until they died off one by one and refuse to replace them. The constitutions authors very clearly did not envision a situation where the senate would simply refuse to perform their duties.
SCOTUS is wiped out, the president nominates a new court and under your interpretation the Senate has the right to refuse to even consider those nominees.
My argument does not lead to or support the conclusion "SCOTUS is wiped out." The Senate refusing to consider a single appointment to the U.S. Supreme Court, said appointment made very shortly after a vacancy occurred, and said vacancy anticipated to exist for mere months, is not the equivalent of "SCOTUS is wiped out," and this is especially true when A.) The Supreme Court has 8 justices on the Court, which is sufficient by statutory law to constitute as B.) A quorum for the Court to hear cases (28
U.S. Code § 1 - Number of justices; quorum, "
The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum."
If this were a situation where the Senate's refusal to act would constitute as abolishing the existence of SCOTUS, then you'd have a great argument the Senate has violated the U.S. Constitution. But the violation by the Senate of the U.S. Constitution would not be the
advice and consent clause but instead
Article III, Section I, which requires the existence of the U.S. Supreme Court.
"The judicial power of the United States, shall be vested in one Supreme Court..."
So, once again, your reasoning does not establish the plain text of the advice and consent clause of the U.S. Constitution requires the Senate to act upon a particular appointment, and your apocalyptic event of SCOTUS disappearing would not implicate the advice and consent clause but Article III.
If your interpretation were correct then the Judiciary is not an equal branch of government because congress could simply wait until they died off one by one and refuse to replace them.
First, the above remark is false as it applies to SCOTUS. The federal judiciary would still exist in SCOTUS, as mandated by the U.S. Constitution. Your notion of a co-equal branch of government being destroyed is misguided and uninformed. The judiciary would remain a co-equal branch of government precisely because the Constitution mandates its existence in SCOTUS, and neither Congress or the President may lawfully eradicate the existence of SCOTUS. Ergo, neither Congress or the President may eradicate the judiciary as it is created and exists under the U.S. Constitution.
Second, all other courts in the federal judiciary exist at the discretion of Congress. Congress is vested with the power and authority to create all of the other courts.
"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 "inferior courts," unlike SCOTUS, is not created by the Constitution but by Congress. Once created by Congress, those inferior courts are vested with the judicial power of Article III. Why is this important?
Because the authors left the creation of the federal courts to the political process of Congress. Those inferior courts exist so long as Congress desires them to exist. Congress could abolish every single one of those inferior courts tomorrow and doing so would be constitutional. Yet, even if Congress did so, the federal judiciary would still exist in SCOTUS, since the Constitution requires the existence of SCOTUS and extends the judicial power to SCOTUS.
So, you have presented a fairy tale when you assert Congress could effectively do away with the federal judiciary under my interpretation.
Equally important is the fact the existence of the inferior courts, as created by Congress, is not jeopardized by the Senate refusing to take any action in regards to a specific nominee for a vacancy which has briefly existed and is not forecasted to exist beyond mere months.
constitutions authors very clearly did not envision a situation where the senate would simply refuse to perform their duties
No doubt, but the dilemma for your position is the plain text meaning of the U.S. Constitution did not create any "duty" for the Senate in regards a President's nomination. Hence, the Senate cannot possibly violate that which does not exist.
In conclusion, you have relied upon a fairy tale, doomsday scenario of a non-existent federal judiciary to justify ignoring the plain text meaning of the advice and consent clause of the U.S. Constitution. Since the U.S. Constitution requires the existence of a federal judiciary in SCOTUS, your fairy tale, apocalyptic event is precluded from occurring. The fictional, cataclysmic event of SCOTUS no longer existing is also precluded by the U.S. Constitution. You invoked two undesirable consequences as a justification to ignore the plain text meaning of the Constitution but when considering those undesirable consequences cannot lawfully materialize, the efficacy of your argument is cut down faster than Jack's magic beanstalk.
What's intriguing is why you'd conjure undesirable consequences that are precluded from occurring by the plain text meaning of a specific constitutional provision as going to occur unless the plain text meaning of another constitutional provision is abandoned? This is truly mystifying.
And your repeated, undaunted attempts to transform this dialogue into the equivalent of a non-existent federal judiciary, isn't logically a persuasive argument, for reasons noted above.
