Amnesia curiae

Which retired magistrate, now a friend of the impeachment court, wanted the Senate to go easy on the 16-vote threshold to convict but favored rigidity on applicants to the highest court of the land?

The gentleman is a former chief justice. He has urged the senator-judges to take a “practical, commonsensical” view of the Constitution. Strict math, he says, should bend to reality, meaning the reality of absent senators. In his view, a two-thirds rule should not be applied so rigidly that it defeats a conviction just because some seats are empty.

This reminded Nosy Tarsee of a somewhat similar situation 20 years ago.

Then, 2006. The gentleman was chair of the Judicial and Bar Council, which screens nominees to the High Court. A feisty, sharp-tongued woman senator, a former trial court judge with a formidable legal mind, applied for the top post. The council had a rule: a candidate needed five votes from its eight members to make the shortlist. She got only one.

No one in that room argued that the strict math should bend to reality. No one asked whether such a rigid cutoff was fair to a candidate of her caliber. The number was the number, and she was out. The rule was applied to the letter, and the gentleman presided over its application.

Insiders say the justice and the candidate had been at odds, and the old guard of the judiciary had never warmed to her.

Now, 2026. The same man says a constitutional threshold may flex when the numbers get awkward.

Put the two opinions side by side. When the rule kept out a fiery outsider, the threshold was untouchable, and reality was not his concern. But when the rule makes conviction harder for the side he is said to favor, the threshold becomes a matter of “common sense.”

Same man. Same arithmetic. Different rulings.

There is an honest debate over how absences should count toward the constitutional vote, and the gentleman may sincerely hold his view. But he cannot easily explain why “practicality” was not owed to the woman senator when she needed it.

If a strict threshold is wisdom, it should bind in 2026 as it did in 2006. If it is meant to bend for the deserving, someone owed her an answer for the year she was turned away with one vote out of eight.

The senator-judges will vote as they see fit. We ask only that their adviser apply one rule to both times.