What If: We Had a Rational Approach to Appointing Supreme Court Justices?

What If: We Had a Rational Approach to Appointing Supreme Court Justices?

Many people fear that the Supreme Court has become too political. In fact, Law Professors say it is all political. When you disagree with the court, they are legislating from the bench. When you agree, you have been successful in stacking the court, the great legacy of Mitch McConnell. The whole idea of a Supreme Court is to make it independent of politics, and to make it an independent third branch of the government. With great gall, Mitch took away a long needed balancing appointment by a Democrat.

Let’s see how Trump has regarded this independence of the Court. First of all, since the Tax Cut is only helping the rich, the Trade Wars aren’t helping anybody, we’ve lost all of our friends, and Trump can’t negotiate his way out of a paper bag, the appointment of very conservative Justice Neil Gorsuch is his only real political accomplishment. The Republican Senate and Trump are bending over backwards to pretend that they are not even considering a Litmus Test for their next Justice. Yet Trump has promised, PROMISED, to only appoint Justices who would overturn Roe v. Wade. And Trump continually brags about fulfilling his campaign promises.

Trump is repeatedly saying that he will put a Justice in place for 40 to 45 years to maintain a conservative bias. His list of 20 chosen candidates came from the conservative political organization, the Federalist Society, and was distributed geographically to help his election chances. He has added five more Justice candidates since then.

Everything Trump says or does about our pillars of Justice: the Department of Justice, our Courts, our Judges, and the FBI is totally politicized. I don’t need to go through that lengthy list.

Trump has immediately reached out to the politics of the Senate, holding a meeting with the three Democratic Senators who are up for re-election in States that he won, and Senators Collins and Murkowski who opposed his healthcare cuts. Trump can only afford one Republican defection in the nomination. This, without even having chosen a candidate, and certainly not one who would deserve an overwhelming vote.

That is enough motivation to consider how to make an independent Court. Even if it is only theoretical now, it is really not necessary to modify the Constitution to change the system, since the choice of Justices is left up to the Advise and Consent of the Senate.

The life terms of Justices are supposed to make them more independent, but that will be abused by Trump to make them more long-lasting political. Then there is the question of retiring those who do not seem independent, or help with the workload of the court, which is declining in the number of cases it takes every year.

I have examined rotation schemes, and none seems better than the present retirement by choice situation.  The FBI directors have 10 year terms to make them independent. With a maximum of eight year presidential service terms, the Directorship can have changing parties or independence. The seven members of the Board of Governors of the Federal Reserve serve 14 year terms, with a new one appointed every even number year.

So, nine Justices could have 18 year terms, similar to their average time of service, or, even staggered 9 year terms. That would get around cheaters like Mitch, if it is written into law. This would involve amending the Constitution, since it gives Justices indefinite terms as long as they are under good behaviors.

Then we have to change the primacy of a maximally political president from choosing the candidates. We have no idea what criteria Trump has used to immediately discard 20 of the candidates. Or the criteria that he will use in selecting the final candidate. Totally contrary to his promises, he is one of the least transparent Presidents in history: “I am the only one who matters.”

So, we should consider the Blue Ribbon Panel approach. The American Bar Association evaluates the almost thousand Federal Justices at their hearings for appointment. Presumably, they do this in a non-partisan way. The FBI probably vets them, something Trump has ignored for 100 people working in the White House. Justice nominees can also be evaluated by the heads of the major law schools in the US. That might also get around the predominance of Yale and Harvard Law School Justices, and the fact that they mostly come from the East Coast or New York City area. They don’t make the final decision, but can submit useful PUBLIC evaluations for the Senate to consider for their Advise and Consent. This gets around the unknowable Trump criteria, and the rushed schedule that Mitch will impose.

It would actually reflect better on the President and lead to his reelection if he could get an almost unanimous vote for his candidate.

Since I have no real education in Law or the Supreme Court, I’m sure that Law faculty could devise much more fair and effective criteria. Our concept of the Supreme Court demands it.

About Dennis SILVERMAN

I am a retired Professor of Physics and Astronomy at U C Irvine. For a decade I have been active in learning about energy and the environment, and in lecturing and attending classes at the Osher Lifelong Learning Institute (OLLI) at UC Irvine.
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