The Scene: A small office building in Philadelphia sometime in late 1786:
Alexander Hamilton: "Okay people, one last reading before we send this section to the printers. (sighs and rubs eyes) Article two, section two now reads:
The President 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.
AH: "Did Livingston get back from Jersey yet?"
Pierce Butler: "No. It takes a week, I told you that."
AH: His wife makes the best muffins. Now where were we?
James Madison: Buddy Butler over there was worried about what happens when a Supreme Court justice dies during the time period the president is running for election.
PB: Let's just assume the worst case scenario. Something so crazy it's almost impossible to believe. (Leans back in chair and lights pipe). Let's say some black guy, born in Africa somehow fakes his birth certificate because his white mother knows at birth he will run for president someday and he makes it into office.
(Loud guffawing in the room)
PB (holds up hands to get quiet) "Just bear with me here. And lets say his election is so divisive that nothing gets done and during the time he is running for re-election...no, lets make it better, at the end of his seventh year, a supreme court justice is killed in a cattle hijacking shoot-out, and immediately the Whigs starting putting out the word that the next president should be the one to make an appointment. How do we handle that?"
Nathaniel Gorham: Why not be totally crazy and say in the new election a former first lady is running for president along with a bunch of nuts and one really rich guy?
(Lots of laughter)
PB: "Be that as it may, we need to change the text. I'm thinking it should read (puts on monocle and clears throat) 'The President shall have the power, with advice and consent of the senate...blah blah yada yada yada to appoint Supreme Court Justices unless the president shall be 1) black and 2) in the last year of his term.'
Rufus King whispering to Roger Sherman "I don't know about you but I find it completely disrespectful to yada yada yada the federal constitution."
Roger Sherman : I once yada yada yada'd the price of hogs I was bringing to market. Will never do that again. Lost like eight dollars."
Ben Franklin (the oldest signer of the constitution, passes some gas loudly and then burps) "A black president. A woman running for president. What kind of country are we going to have in 1900? (Turns to William Few) Mr. Few. I say with all this fanciful talk you might as well chip in and say what about if there is a peanut farmer from Georgia as president? They grow peanuts in your state don't they?"
William Few: "Indeed they do sir. The finest in the land."
PB: "Okay, resolved, some presidents will lose the authority to appoint supreme court justices and ambassadors during their last year in office."
(Just then there is an enormous ruckus outside and everyone except Benjamin Franklin, who appears to have fallen asleep runs to a window in time to see William Livingston return and get out of his carriage. The Pipe Pierce Butler had been smoking was set down on some paper on the table and the table goes up in flames)
WIlliam Few: "Fire! Fire! Everybody out of the building."
As the fire spreads Benjamin Franklin is the last to leave the room. Before he leaves he reaches into his pocket and pulls out a match and lights it and sets it to some papers in a book case and mutters to himself: "They want to amend article to two to stop some black president in the future from making an appointment to the supreme court? I've never heard of a worse bunch of malarkey,"
William Livingston bursts in to stairwell as everyone is running down to get out of the building: What did I miss?
And that's how Article II was NOT amended to prevent President Obama from appointing a justice to replace Justice Scalia.
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