It’s A Slow Day…

 So…

MAGA supporters lit up social media with calls for Jackson to be ousted from the court. Many argued that Biden lacked proper mental capacity to appoint her to the court in 2022.

Ketanji Brown Jackson should be removed from the Supreme Court… She was a DEI appointee by an invalid who had no idea what he was doing," wrote MAGA commentator Gunther Eagleman to his 1.5 million followers.

Eric Daugherty with FloridaVoice News posted, "Kentanji Brown Jackson was the ONLY Supreme Court Justice to rule against Trump in today's alien parole decision, which was 8-UNQUALIFIED! She proves it every time."

Author Juanita Broaddrick wrote, "Ketanji Brown is not a legitimate Supreme Court Justice. She should be removed," while right-wing podcaster Jack Posobiec offered his thoughts on the matter:

"I will ask this again: Was Ketanji Brown Jackson a legally-nominated Supreme Court Justice if the person who appointed her lacked capacity? Only a President can sign a commission officially nominating a Supreme Court Justice Not a staffer, not an autopen, a president with full mental capacity."

Former West Virginia House member Derrick Evans called on Congress to "Impeach Kentanji Brown Jackson. Biden was not mentally capable of appointing her to the position. She needs to be removed from the Supreme Court." While MAGA commentator Ian Jaeger commentator told his 300,000 followers, "Kentanji Brown Jackson is the only Justice to rule against President Trump canceling legal status for over 500,000 illegal immigrants that came in under President Biden’s 'parole' program. She’s totally unqualified to serve on the Supreme Court."

Art. II. Sec. 2, clause 2, in relevant part:

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:

The appointments clause is not absolute, of course. Appointments are only made with the consent of the Senate.  Who’s is why, although "diminished capacity" is a statutory concept now, it’s not a Constitutional one.

The idea arose from the common law. I’m fairly certain it first came up in probate, as a matter of determining testamentary intent. It came to criminal law in the 19th century, in the M’Naghten case, where the defendant believed he was killing a man who threatened his life, but he was deluded about the threat (paranoid delusions would be the pop psy explanation, if that helps. The delusion was quite severe, IOW.) To be clear, the probate elements were established centuries before the rule in M’Naghten.

But in modern American jurisprudence diminished capacity is limited to the probate code or family law (minors do not have the capacity at law to make contracts, for example); to statutory exceptions, in other words, which must be proven in court.

A long-winded way of saying there is no “diminished capacity” clause in Article. II, nor any standard for establishing it in the Constitution. The closest is the 25th amendment:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

That’s section 3. Section 4 is the one most people think of:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The standard is the same, but you can see the battle royale that would ensue to enforce it. Because it ain’t real clear what it means.

And the public record against Biden is pretty much George Clooney and a bad debate performance. Whereas the public record on Trump is…voluminous.

But the bottom line is, there is no language in the constitution, nor theory in Constitutional law, that allows for rescission of lawful Presidential actions based on a claim (or even evidence in court) of diminished capacity.

And even the Roberts court would never establish it.