The Judicial Depoliticitization Amendment

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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89 Responses

  1. Oscar Gordon says:

    As long as the random drawing of lots for the committee is above board and transparent, I’m good with it.Report

    • I don’t understand. It is already nine justices in the Supreme Court including the chief justice, isn’t it?

      I propose an amendment to the Constitution of the United States (and the Republic of the Philippines); that during
      the oath of office of any impeachable official, the following shall include and
      inserted in the oath of office during the
      inauguration or induction of their post; ……and I solemnly swear to my Country and to the Constitution of the US (or the Republic of the Philippines) that I don’t owe no one or repay no one in the fulfilment of my duty for the nomination and confirmation of my position, so help me dear God.

      Section 1 – …………..Report

  2. pillsy says:

    If we’re amending the Constitution to depoliticize the Court, we should impose a limited term (I like 22 year) and possibly increase the size of the Court.

    That would make less ride on any particular seat, and also eliminate the incentive to make nominees young as possible.Report

    • Morat20 in reply to pillsy says:

      Make it 16 years. Two full double Presidential terms. 22 is an odd sort of number.

      I’d do a transition period, starting after the next Presidential election (specifically, with the newly inaugurated President, not in the lame duck period) after the amendment was ratified, you retire a judge every two years, in order of seniority.

      Probably with a caveat to allow a judge to volunteer to retire “out of order”.

      Of course if you want to keep the “a new justice every two years” pattern, you’d have to have some method to handle deaths or unexpected retirements. Not sure how you’d handle that, it’s doable if you lost a judge, but if you had three or four retire in a few year period it’d either result in the whole thing getting knocked off cycle, or some reduction in term length for each additional “out of turn” judge being selected.Report

      • Burt Likko in reply to Morat20 says:

        Maybe you just deal with an irregular number of Justices for a few years at a time?Report

        • Morat20 in reply to Burt Likko says:

          I prefer to keep it on the every two years cycle, and if there’s some tragedy, not letting a single President or Senate stack the court.

          I think selecting someone to fill in the remainder of their term, if they have more than a year to go, would work, with the caveat that they are not eligible as permanent member of SCOTUS (because they’d end up serving more than the 16, 18, or 22 years — whatever the cap is) but could be appointed a replacement again, as long as that won’t end up with them serving more than the term limits.Report

  3. Chip Daniels says:

    It might help, but I’m afraid our problems run deeper.

    It’s been said before that America could become a repressive dictatorship without changing a word of the Constitution, and I can see how.

    When a sizeable number of people are determined to hold power by any means necessary, and refuse to accept the idea of a loyal opposition, no structure or system can create freedom or democracy.Report

    • pillsy in reply to Chip Daniels says:

      I think this is reading ambitions in to Burt’s plan that aren’t present.

      I also think that the Court’s problems aren’t the result of one big failure, but a lot of little failures, many of which are only tangentially related to the Court itself.Report

      • pillsy in reply to pillsy says:

        I have a Twitter thread on this (with an appearance by @jaybird ) where I lay out my sense of what’s gone wrong from a very partisan Team Blue perspective.

        (I link my Tweetstorms because my ADHD is way too bad for me to ever write conventional essays in a useful way.)Report

  4. Aaron David says:

    On a first pass, I feel the idea that we should have only nine justices on that court forever and ever is wrong, as this doesn’t account for the changing needs of our country.

    On a more meta note, trying to remove politics, at least the politics of the day, is, in my opinion, the wrong direction. Law is downstream from Politics is downstream from Culture. If you don’t start with changing the culture, then what you are attempting (noble as it is) starts in the wrong place.Report

  5. Jaybird says:

    I like the plan somewhat, I guess, insofar as I think it would now do what you intend to accomplish now had it been implemented back when FDR attempted court packing way back when…

    But I suspect that the meta-game rules apply rather than the game rules at this point.

    That is to say, an attitude that says “oh, you want to change the rules to the game right before we are ascendant, right before we pack the court, right before we establish a 50-100 year rule, and you want to *PRETEND* that this rule change isn’t political?” will oppose this rather than one that says “yes, we should hope that the judiciary is not particularly politicized.”


    I imagine that the focus for either team following such a rule being implemented will be on the importance of placing judges on the bench in the first place and one of the unintended consequences will be more democratic recalls of judges at the state level. “We can’t risk Judge So-and-so going to the Supreme Court. Better recall her now, before that becomes possible.”

    (Or, worse, changes at a law school level. The other day on twitter, erstwhile Brother Ryan Noonan and I got into it over supreme court picks and he suggested keeping Conservatives out of law school in the first place and pointed out that the best way to keep Conservatives out of PhD programs was just to make them require high levels of intelligence in the first place. My suggestion that Law School move to a hardcore testing regimen prior to acceptance was responded to rather coldly.)Report

    • Murali in reply to Jaybird says:

      (Or, worse, changes at a law school level. The other day on twitter, erstwhile Brother Ryan Noonan and I got into it over supreme court picks and he suggested keeping Conservatives out of law school in the first place

      I seriously hope this doesn’t catch on. Some departments already feel entitled to discriminate against conservatives (and its not illegal to do so), getting law schools in on the fun would be horrendous. I do however foresee an ideological resorting of law schools. Half the law schools become explicitly progressive and the other half become explicitly conservative. I’m not sure that would be an improvementReport

      • Saul Degraw in reply to Murali says:

        @murali @jaybird

        Law School is such a hierarchy in the United States that conservatives will generally be glad to go to the top-schools as they are goldmines even if the professors at those schools are left-leaning.

        Historically, there have always been Democratic-leaning firms and Republican-leaning firms among the BigLaw elites. Arnold and Porter is traditionally a Democratic firm because it was founded by people who cut their teeth as a New Deal staffers including Abe Fortas. Kirkland and Ellis was always a Republican leaning firm. On a lower-level it depends on the type of law you practice. My field of law (plaintiff-side personal injury) tends to be Democratic overwhelmingly, not many Republicans want to go into personal injury on the plaintiff-side. Firms that represent police officers tend to be Republican.

        Interestingly, Lawyers as a profession went more for HRC than Trump including at the big corporate firms. Mitt Romney had a fair amount of support from lawyers. Trump had negligible amounts:

        In 2012, employees at these companies made 3,552 contributions to presidential campaigns. Barack Obama received 58.6 percent of these contributions while 40.6 percent went to Mitt Romney (the remainder going to other candidates in the Republican primary). Mr. Romney’s percentage of contributions was very similar to the percentage of the vote — 42 percent — he received in the election from voters with any postgraduate education.

        The same data for the 2016 election provide a stark contrast. Of the 4,812 contributions originating from these companies, Mr. Trump received a total of 40. Meanwhile, contributions to Hillary Clinton outnumbered those to Mr. Trump by a ratio of more than 100 to 1.


        • Murali in reply to Saul Degraw says:

          The issue is not about having liberal professors. Everyone expects their prof to be liberal. The issue is about ideological discrimination (sometimes blatant and explicit cases of such) in admissions. I will presume that even though law school admissions committees are staffed predominantly by liberals, they do not blatantly discriminate the way psychology or sociology admissions committees would.Report

          • Burt Likko in reply to Murali says:

            It’s been many years since I was in law school. This is generally consistent with my recollections, though: you don’t have to be liberal to get in, you don’t have to be liberal to get good grades. As with much of the rest of the law, political attitudes are not particularly important for most of what is covered anyway, particularly in core classes. (Constitutional law and criminal procedure being significant exceptions.)

            The level of intellectual competition is high, though, so you may get someone who is very smart but not used to being around so many other people of equivalent or greater intellectual ability and subject matter aptitude, so you might mistake your new place on the curve for some sort of bias.Report

          • Saul Degraw in reply to Murali says:

            IIRC law school admissions is overwhelmingly based on LSAT scores and undergrad grades.Report

    • Marchmaine in reply to Jaybird says:

      Sure… in all matters of power shifting; to make substantive changes and maintain peace, the group with the power has to throw it away for the sake of a better power structure.

      If you grab power and your “new” power shift makes you more powerful (even if you deeply believe it is somehow “better”)… that’s a recipe for rebellion.

      Which is why we see far more rebellions than peaceable power restructurings.Report

  6. Saul Degraw says:

    This seems like a noble intention to me but I am not sure it will work.

    I wonder if part of the problem is the whole practice of Anglo-American law. We are an adversarial system and has a psychological effect on a lot of people. I think it is possible to represent your client’s interest and be pleasant/sociable with the opposing counsel. There are a lot of lawyers who think this is impossible though. I’m sure you have encountered them. These types love to grandstand, lecture, and be officious over any minor and technical issue. They see it as their job to demoralize and grind you down. Or they look for every single loophole that they can. Remember when Kris Kobach said that there are multiple definitions of “immediately.”

    Chip is possibly right but I think that the GOP has become a revolutionary vanguard party. They are quite convinced they are right and because they are right, anything that prevents their policies from being enacted is a no go.

    I’m sure some clever lawyers can find ways around “chosen by lot.” For example, you didn’t say how big the lot needed to be or that it needed to be a bipartisan lot.Report

  7. Iron Tum says:

    While I am a bit (ok, more than a bit) leery of allowing the court to self-select, I do strongly approve of the role of the lottery in the selection.

    Power will always be abused, and power attracts those that want to abuse it. The problem with any sort of candidacy-based leadership selection process is that it necessarily selects from people who want power, those people being as the philosopher Douglas Adams noted are the last people who should be allowed to have it. Therefore the way to reduce abusive government (other than the impossible step of reducing government power) is to select leaders at random.

    Specifically to the US, the House of Representatives is supposed to represent the people. As anyone with even rudimentary education in sampling theory knows, the only way to actually get a representative sample is random selection. Choosing from among people with political ambitions is guaranteed to be non-representative. Furthermore, random selection eliminates the issue of the HoR being too white, too male, too straight, too cis, too English speaking, too… the HoR chosen by random selection will most accurately represent the citizenry as it exists.

    The argument can be made that the Senates is supposed to represent the states, not the people, and the executive is something else entirely, so random selection is probably not proper for those positions, but for the House, elections should be eliminated and replaced by a lottery.Report

  8. Marchmaine says:

    The single biggest concern I’d have with your proposal is the counter-intuitive objection to a closed-loop selection process. I certainly see how thinking that a professional body ought to be the people best able to judge competency; but making promotion contingent upon the network of a very small body of peers also introduces a disproportionate set of perverse incentives… and a very small pond in which those incentives work themselves out.

    If the goal is de-politicization, I’m leaning more towards a fixed term and expanding the court to 11 justices. A’la @pillsy 22-yrs with a justice up for replacement every 2 years makes some sense (I’ve also seen 9 and 18-yrs – I’d be open to any formula that only grants 2-replacements per 4-yr presidential term)… the biggest issue I see with that is off-cycle deaths/retirements and how that might impact the court… perhaps limiting any single president to three replacements per 2-yr term? [On the other hand, our Justices don’t die all that often, so as long as we’re not moving the court to an Alaskan Fishing boat… that’s probably a small concern].

    Another idea to perhaps diversify the political make-up would be to expand the number of Judicial districts to 11 and require a justice from each district… or, perhaps, 7 out of 11 have to be represented at any given moment to allow for some leeway with regards talent (and/or wayward jurisdictions).

    But, by all means, let us decentralize and reduce the bi-polarity of as many institutions as possible… constitutionally is best.Report

    • pillsy in reply to Marchmaine says:

      as long as we’re not moving the court to an Alaskan Fishing boat…

      That’ll be the 29th Amendment.Report

      • Marchmaine in reply to pillsy says:

        …Justice overboard!

        We’d probably lose a lot of Justices to the protocols of assigning life saving duties. Or imagine if protocol required Cert for action… could introduce some serious court intrigue and a whole new idea of watching one’s back while on the bench.Report

    • PD Shaw in reply to Marchmaine says:

      I don’t think I’m terribly attracted to the idea of justices picking justices either. I believe some states have nominating committees from which justices can be selected, and Burt probably modeled this proposal on those concepts. But I think some of them have civilian representation of some sort on the body?

      Otherwise, my personal preference is also the fixed term limit option, Though I’m fine with 9 justices; I suppose some people differ or are uncomfortable with a hard limit and that could be resolved with a formula that would be flexible enough. Perhaps every two years the President gets to nominate a replacement for the Justice that has served the longest. In cases of resignation/death, the President’s appointment is a substitute for the next scheduled appointment.Report

    • Marchmaine in reply to Marchmaine says:

      p.s. If you have to be 25 for the House and 30 for the Senate, and 35 for President, I’d add to the amendment that you have to be 45 for SCOTUS. Possibly matters less if there are term limits (only one term?) and probably neutral on the politicization equation,… but still the position should require demonstrable jurisprudence in ways different from elected representatives.Report

  9. Pinky says:

    I like it. It reminds me of the election of a Doge.

    Of course, if we really wanted to depoliticize the Court, we should only choose originalists.Report

  10. Saul Degraw says:

    Another issue is how would this eliminate the highly political nature of many court decisions? I don’t think it would. It is entirely possible for a liberal Democratic President and liberal Democratic senate to get a random selection of only right-wing justices. They would simply try and try again until they got a good match. Vice-versa is also true.

    The truth is that Supreme Court decisions are political because now we use them as a veto point for legislative and/or executive actions we do not like. You saw this with the travel ban and you saw this with the ACA. Now there are times when this is probably very valid because of judicial review but it seems that if you want to make the judiciary less political, you need to get a bilateral disbarment against both ALEC and the ACLU. The chances of this happening are slim to none.

    Even decisions that don’t come via this way can be political. Look at the binding arbitration decisions which are usually 5-4 on a GOP v. Dem split. Look at BMS v. Superior Court which came from private litigation and is now being used as a hardball case by Defendant-corporations especially in toxic tort cases. Defense firms are currently taking a maximalist approach to BMS and saying it stands for the proposition that specific personal jurisdiction is basically dead and they never have to comply with jurisdictional discovery. BMS was an 8-1 decision and most jdx decisions are not 5-4 but they do get weaponized.Report

    • Marchmaine in reply to Saul Degraw says:

      You’re right, it wouldn’t eliminate it; I suspect it would mitigate is somewhat owing to the predictability and the potential steam-release of elections. But yeah… could certainly have a scenario where a string of previously appointed justices are all lined up for replacement by the other team. Of course, that means the team before that had a run of appointing a string of Justices that now need replacing.

      Its the idea that the next turn-over is just 2-yrs away… there’s always a new justices in the wings.

      But yes, hard to know for sure if that would let out some steam or just add a more rancorous point of conflict for each and every election. There’s something to be said for randomness and unpredictability making plans impossible.Report

      • Aaron David in reply to Marchmaine says:

        “Its the idea that the next turn-over is just 2-yrs away… there’s always a new justices[sic] in the wings.”

        And this would just cause time shopping among litigants.Report

        • Burt Likko in reply to Aaron David says:

          Statutes of limitation generally make that difficult for individual litigants. Activist groups like the Alliance Defending Freedom on the right or the ACLU on the left would engage time-shopping with their case selection strategies, of course, but they do that already.Report

          • Aaron David in reply to Burt Likko says:

            Well, if we are going to change this about the courts and legal system, whats to stop changing that

            And I think that is the surface level type of problem with proposals such as yours. Much like the 17th amendment, it was a solution to a problem, but in that soluting created another set of problems. And is starting to look (to me at any rate) like the wrong direction as far as solutions go. In other words, I don’t think changes like this would solve the problem that the court is exposing but would paper over the issues and let the big fissures deepen.Report

    • Slade the Leveller in reply to Saul Degraw says:

      Decisions will always be political fodder, but that is not the intent, IMHO, of Burt’s proposed amendment. Depoliticization of the selection of justices is.

      I do like the length of service restrictions proposed here. That would eliminate people having to hang on, a la RBG, to avoid having their successors picked by a knucklehead like the current occupant.

      What we do need to get away from is the idea that ideological continuity is a valuable prerequisite to a seat on the Court. The notion of Scalia’s seat, for instance, is corrosive and non-democratic. Both sides play that game, to the detriment of the nation they purport to serve.Report

  11. Jaybird says:

    18 year terms. 3 Supreme Court Justices Per State. New Supreme Court Justices are sent up by the state’s governor during the even-numbered years in which they do *NOT* have a Senator up for election/re-election.

    If a justice dies, a replacement can be sent up immediately but will retire when their seat’s term is up… they won’t be booted to the back of the line.

    Justices can be sent up multiple times, if the governor is so-inclined to send them up a second time.

    One justice for DC, to give an odd number of justices (in theory).Report

    • Marchmaine in reply to Jaybird says:

      Things to like in this… why 3 justices if they all go at once? I could see 2 or 3 if they were spread over time to allow for changing political tides at the state level… else just 1 becuase I kinda think 150 justices is less of a judicial panel than just a third house of deliberation… and that would lead to other totally new bad behavior.

      Whatabout 17 Justices sent up from the States on a Rotational basis (DC gets to play to make 51… or DC/Puerto Rico/Guam get to split their play).Report

      • Jaybird in reply to Marchmaine says:

        Oh, yeah, spread over time. Like, every six years- out with the old, in with the new. (Hence the 18 year term)Report

      • PD Shaw in reply to Marchmaine says:

        150 justices is less of a judicial panel than just a third house of deliberation…

        I think it is inconsistent with basic principles of a common law court system, which is that a court does not merely announce the result of the decision, but explains the reason for the decision in light of past precedent in such a way to guide future cases. When there is no broad agreement to the reason for the decision, the decision will generally lack precedent. (This is the complaint about Kennedy; his reasons were frequently his own and provide little guidance to the future without him on the Court)

        I see 150 Justices, constantly rotating, to lack stability and increase uncertainty.Report

    • Jesse in reply to Jaybird says:

      Nah, no more overrepesentation of land over peopleReport

  12. Murali says:

    Somewhat off topic, I keep hearing that Roe v Wade is in big trouble now that Stevens is being replaced by a conservative. But, the court has had 5 conservatives (excluding stevens) before. See the Rehnquist court in the 80s. Even then they didn’t repeal Roe. And Rehnquist was a far more hardline conservative than Roberts is. So what gives? Either the people freaking out about Roe are being silly or I’m missing a particular dynamicReport

    • Saul Degraw in reply to Murali says:

      Kennedy, not Stevens. Kennedy was part of the Casey v. Planned Parenthood trio way back in the 1990s.

      Souter, Kennedy, Stevens, and O’Connor were all Republican appointees but they all had soft-spots to varying degrees. Souter and Stevens basically became part of the liberal bloc by their retirements. Kennedy and O’Connor remained more conservative but with exceptions.

      Conservatives have learned and are now more likely to appoint ideological hardliners who rarely (if ever) deviate from the ideological commitments of the right-wing. They also are much better at appointing relatively younger justices who can be on the court for decades.

      This is part of aysemmetrical polarization. I generally think Obama’s Judicial picks were good but he did appoint generally older justices and also more moderate ones because he sincerely but erroneously thought it would encourage bipartisan consensus. Merrick Garland would make a fine Supreme Court justice but the GOP won’t appoint their equivalent of Merrick Garland if only because of age.Report

      • Murali in reply to Saul Degraw says:

        Right Kennedy, not Stevens.Report

      • Murali in reply to Saul Degraw says:

        O’Connor as far as I can tell, was fairly conservative with respect to Roe v Wade.

        Together with Rehnquist, Scalia, Thomas and White, there were two whole years (From 91-93) where there were 5 conservative justices and nothing happened to Roe.
        Besides, I think Roberts cares enough about the reputation of the court that he will not just overthrow Roe. So, no, the Roberts court is not going to reverse Roe. At least not because of this particular replacementReport

        • Saul Degraw in reply to Murali says:

          That is what everyone thought until Casey. Everyone thought Roe was a goner but Souter, O’Connor, and Kennedy got cold feet at the prospect for whatever reason and created the incredibly weird Casey decision which both preserved Roe but allowed for the constant game of litigation we are in with red states seeing how close they can get to banning abortion without running afoul of Roe.Report

          • pillsy in reply to Saul Degraw says:

            Yup. I just have a feeling that Roberts will be content to keep that game going.Report

            • Iron Tum in reply to pillsy says:

              Even if he has to invent concepts like his “penaltax” to make it work.Report

            • Morat20 in reply to pillsy says:

              Well, speaking from a purely partisan perspective: Repealing Roe would be an awful thing for Republicans.

              Turning out people to vote to support the status quo is not a winning issue. The happier you are with the status quo, the less motivated you are to vote about it.

              Roe v. Wade is the law of the land, and has been for decades. There’s a lot of people who are very pro-choice and simply don’t vote like it, because they do not see a real connection between “who they vote for” and “abortion law”, especially through secondary or tertiary effects like “Who I vote for, and what they think about an issue I assume is settled law, and how that will inform their votes for judges, and how those judges will handle what I assume is totally settled law”.

              It’s any topic, really. Abortion’s just the current example. If Roe v. Wade is repealed, and a bunch of those trigger laws go into effect, you’re likely to see a very sharp uptick in single-issue pro-choice voters, because suddenly they’re not happy with the status quo.Report

          • Murali in reply to Saul Degraw says:

            Casey was in 92 which coincided with that 2 year period I mentioned above. It’s unlikely that anyone trump picks could make the court more conservative than it was between 91 and 93. Also, given that Roe was re affirmed in Casey, its harder to overthrow it. i.e. its much more binding. Also, you can’t significantly weaken Roe any more without overthrowing it. But we all agree that the latter won’t happen.Report

        • pillsy in reply to Murali says:

          I think there’s a general thing here where shifting the median SCOTUS vote from Kennedy to Roberts is not going to be a huge thing.

          A lot of this is echoing hard feelings from what happened with Gorsuch/Garland (and seriously that was some bullshit), because a shift from the median vote being Kennedy to being Kagan (or Garland) would have had a substantial impact.Report

          • Murali in reply to pillsy says:

            Right, it’s the replacement after this one that might matter. If Alito becomes the median justice, then things may very well be different. Then Gorsuch may pull left. Scalia was at his most conservative in mid to late 90s. He had been drifting leftwards for the last 15 years of his life. Gorsuch, at least according to wikipedia is about as conservative as Scalia was when he died (i.e. when he was at the most liberal part of his trajectory).Report

            • Murali in reply to Murali says:

              Gorsuch may pull up left of Alito. Then again, Alito has also been drifting leftwards. We may still get republican appointed justices who are kinda sorta liberal/centristReport

              • Saul Degraw in reply to Murali says:

                Please cite a case in which Alioto is drifting leftwards because I don’t really see it. He and Gorsuch spent this term gutting voting rights, generally gutting the rights of criminal defendants, upholding the rights of corporations over the rights of workers and consumers, etc.Report

              • Burt Likko in reply to Saul Degraw says:

                Alito is drifting leftwards like Pluto is in a degrading orbit that will eventually cause the former planet to collide with the sun. It’s so far out and the movement is so small we can effectively ignore it and every calculation relevant to human experience will remain correct.

                As in, he might have started getting take-out pho for his clerks on late nights instead of pizza. That sounds like multiculturalism, Alito-style.Report

    • PD Shaw in reply to Murali says:

      I do not believe Roe v. Wade is ever likely to be overturned, and if it is, the Republicans will be in serious trouble politically, but in any event, see my first point.

      (There is the view that Roe v. Wade was overturned in Casey in a way that strengthened the underpinnings and provided more room for regulations. Some people think the court might allow more regulations, but these already seem to be transparent fictions that lack medical necessity. I suppose if protections were to be rolled-back, it would be based upon technological changes (fetal viability and morning-after pills) not present when Roe/Casey were decided).Report

  13. Michael Cain says:

    Nit-picking stuff… 60 days, not 30, at least for the Senate. They will still want to run the nominee in front of the Judicial Committee, and some number of Senators will want to have private interviews, and sometimes the calendar is just full (eg, it’s September and there’s still no budget). Weight the chances in the drawing by population — otherwise the chances of getting three chief justices from small rural states is much higher than getting three from large urban states. Ditto for the Circuit Courts — the 9th covers more people than the 1st, 2nd, and 3rd together. The Senate and the EC already favor the small rural states; let’s not put in another mechanism that does the same thing.

    More substantial, but along similar lines… My own feeling is that the Court’s problem is fundamentally that it has become a NE urban corridor thing — the law schools, the Circuit Courts from which the justices are drawn, where it meets, etc. At least get them the hell out of Washington. Better to do that and broaden representation in some fashion. If the argument against that is along the lines of “There’s no one in the 5th Circuit who’s qualified for the Supreme Court,” well, that’s indicative of a different serious problem.Report

    • I’m okay with expanding the Senate’s time to react in theory. But I do want to have the Senate act with alacrity.

      What, exactly, would the Senate and individual Senators be doing that is more important than this? Addressing the budget to keep the government open and functioning, and debating issues of war and peace, okay. Anything else?Report

  14. J_A says:

    I like the proposal as is, except that I would send the President a larger list (25 potential candidates is a reasonable number) so that he has more leeway to chose (from 300 million to 25 is still a big reduction)

    I would agree that the Senate can only vote down three candidates, and the fourth will be automatically confirmed.

    I’m against term limits for Justices. It opens the field to too many “Justices in the wings”Report

  15. I’ve generally been opposed to making changes in the Court but it’s gotten so out of hand, I’ve moved to a neutral position. That, and the Court tenures have gotten ridiculously long. We should have the occasional justice who practiced law since I was born.

    The right proposal could sway me. The problem is that this discussion is entirely academic. You’d have to amend the Constitution and neither side wants to give up what they see as a tool to bash the other side.Report

    • I know it’s hard, a daunting proposal. But it’s all we have to solve the problem. And IMO, preserving respect for the courts and by extension the rule of law itself is important enough to merit an attempt at altering the Constitution.

      The best argument for amendment of the Constitution in a hyperpartisan environment that I can think of is: “What if the other guys got control somehow?” That’s one of the reasons Democrats voted to term limit the President: sure, they liked FDR getting elected four times in a row (well, most of them did) but they didn’t like the idea of some Republican down the road doing it too.

      It would be hard, but it can be done.Report

  16. Burt Likko says:

    All: I know the staggered 18-year or 22-year term proposal. But that’s a different angle than I’m proposing here.

    It does not, in my estimation, adequately provide for what happens with removal of a Justice on a basis other than expiration of a term. Death, resignation, incapacity, or impeachment all could happen to any of the Justices at any time. There are two ways to deal with unpredicted vacancies: one is to allow for appointment to fill out the remainder of that Justice’s term, and the other is to allow for a new term of years to begin, which imbalances the one-seat-every-two-years flow.

    But more importantly, the term limit proposal guarantees that a President serving a full term of office will have at least two vacancies. That provides a “vent,” so that every party winning an election gets the “prize” of making appointments and having an impact. It’s a guarantee that every President will have at least two plums (maybe more) to offer, and that every Senate will have at least two chances to debate and argue over those plums.

    I’ve come to think that this would escalate the politicization of the judiciary. We would know the Justice up for replacement. “This is the most important election of our lifetimes. The next President will get to pick the replacements for Justices Thomas and Ginsburg!” “Who do you want deciding on the kind of judge who will replace Clarence Thomas — me or my opponent?” “I promise that if elected, I will nominate Don Willett to replace Clarence Thomas! That’s our seat and they’re not taking it from us!”

    Compare that to: “The committee is going to give me a slate of three names. I’ll pick the best one on the list, believe me. I’ll look for qualities X, Y, and Z on that list.”Report

    • Alan Scott in reply to Burt Likko says:

      Burt Likko: All: I know the staggered 18-year or 22-year term proposal. But that’s a different angle than I’m proposing here.

      It does not, in my estimation, adequately provide for what happens with removal of a Justice on a basis other than expiration of a term. Death, resignation, incapacity, or impeachment all could happen to any of the Justices at any time. There are two ways to deal with unpredicted vacancies: one is to allow for appointment to fill out the remainder of that Justice’s term, and the other is to allow for a new term of years to begin, which imbalances the one-seat-every-two-years flow.

      You’re overlooking a third solution to that problem, which is likely superior to the first two at least in the matter of avoiding politicization:

      In the event that a seat becomes vacant, it simply remains vacant for the remainder of the term. Since 22-year terms means there are theoretically 11 justices on the court, a couple of unexpected vacancies still leaves the court at it’s customary 9 members.Report

  17. Section 5: All current members of the Supreme Court shall have their terms expire from 2-18 years from now, from longest to shortest tenured.

    Otherwise, you’re locking in the current group of right-wing extremists without allowing the next election to swing things back towards balance.Report

  18. LeeEsq says:

    If we really wanted to depoliticize the judiciary, we would extend this Amendment to cover the entire Federal Judiciary from the Supreme Court down to the District Courts and possibly even the federal administrative courts like the Board of Immigration Appeals, the Immigration Courts, and the social security courts.Report

  19. I appreciate @burt-likko thoroughness here. I would put forth my own humble suggestion that would be simpler than the amendment process and already has some precedent. This is by no means an original thought to me as others have variations on it.

    I would propose a minimum age of 50 for SCOTUS and a mandatory retirement of 70. Grandfather in sitting justices, but otherwise each new nominee you have a de facto 20 year or less term without involving any other agency or mechanism. Using a hard out number would not please everyone, but would be about as “fair” and non-political as you can get. New York State for example has a retirement age of 70, and one attempt to extend to 80 was defeated by popular vote. There are a few other examples and there is enough room in the Constitutional language to do so.

    Slate kicked this around referring to federal judges but could also be applied to SCOTUS . I think it would be relatively simpler, easy to implement, and limiting standard for the court.Report

    • Em Carpenter in reply to Andrew Donaldson says:

      I haven’t made up my mind about term limits in general for SCOTUS, but for the sake of argument I like this plan, Andrew. I think I’d go 75, though I can’t really pinpoint why.
      At 50 most lawyers are roughly 25 years into a career (assuming they went directly to law school after going directly to a four year college) so the experience is there. 70-75 is a good, natural time to wind down (though mental faculties may very well remain sharp- hi Ruth!)Report

    • Iron Tum in reply to Andrew Donaldson says:

      How does that square with anti-age discrimination laws?Report

      • The ADEA Act, which I assume you are referring to with anti-age discrimination laws, has provisions for defensible discrimination for “Bona Fide Executive” or in a “High Policymaking Position” as defined by EEOC and individual is over the age of 65. Clearly the Supreme Court is a high policymaking position.Report

      • Burt Likko in reply to Iron Tum says:

        1. Statutory age discrimination is a one-way street: discriminating against the young does not violate the law. In most contexts, the line is drawn at age 40, but there’s no reason another law might not draw the line at a different age in a particular context.

        2. This requires an amendment to the Constitution. The Constitution trumps statutory law.Report

    • Whatever the merits or demerits of your plan, @andrew-donaldson , this too would require a Constitutional amendment. As would any term limits proposal, because Article III judges serve with lifetime tenure. I suspect that a statutory attempt to restrict who the President appoints to a judgeship (even by something as obvious as requiring that the appointee be a lawyer) violates the Constitution as currently written.

      So once we’ve crossed the bridge to amending the Constitution, the time for policy modesty is passed: having determined to do the big job, let’s do it right and not by a half measure.

      Age restrictions for service are certainly within the realm of contemplation, as are term limits, and academic and experiential qualifications.Report

      • There is some arguments over the language of Article III that I will leave to smarter legal minds than I, but short of that I concede the point. Which brings me back roughly to were I began in reading your piece, and you allude in your comment of “once we’ve crossed the bridge to amending the Constitution, the time for policy modesty is passed”; I’m inclined to leave the current system, imperfect as it may be, intact as is. While I appreciate your thought process in your proposal, and agree with much of your reasoning for doing so, the path of amending would, I fear, make more problems than it solves, not necessarily your proposal but as a general rule.Report

  20. Here are my initial thoughts, before reading any of the comments above:

    1. If someone named to the selection committee refuses to serve, why not just replace him/her by another round of lots?

    2. Don’t some states not have supreme courts and therefore no chief justices of supreme courts? I might be wrong here, but maybe instead of “Chief Justices of the Supreme Courts of the several states” you could say “Chief Justices of the Supreme Courts of the several states or most senior justice of the court of last resort of the several states.”

    3. Instead of “or such other officer as the President may designate,” I’d recommend, “or such other officer as the President may by law designate.” (The AG had to be approved by the senate. The other person the president designates should also have been approved, in my opinion.)

    4. I’d change your references to 30 days to 60 or 90 days, to give a little more time for deliberation.

    5. One concern I have that I don’t know how to address is that this process is heavily slanted to choose people who are already judges or well advanced in the legal profession. I suspect this panel will be disproportionately likely to choose such people. There may be other qualified people who are not already sitting judges.Report

    • #1-#4 are all good ideas.

      #5 is a serious concern, but it’s not one I think we can do much about anyway. We’re in a world where it’s unlikely we’ll ever again have an Earl Warren on the Court again anyway. From time to time, certain prominent law professors or politicians get discussed; Mike Lee was in the mix briefly for this appointment, for instance. And with that said, prior judicial service does indeed seem like something that better than nearly anything else demonstrates aptitude and ability for service on the Supreme Court.Report

  21. Dan Miller says:

    My suggestion would be to weight the selection committee by population. There’s no reason that the Chief Justice of the Delaware Supreme Court should have the same odds of being picked as the Chief Justice of the Texas Supreme Court. You’re doubling down on one of the crappiest features of the Constitution.Report

  22. Ernie Adamos says:

    I don’t understand. It is already nine justices in the Supreme Court including the chief justice, isn’t it?

    I propose an amendment to the Constitution of the United States (and the Republic of the Philippines); that during
    the oath of office of any impeachable official, the following shall include and
    inserted in the oath of office during the
    inauguration or induction of their post;

    ……and I solemnly swear to my Country and to the Constitution of the US (or the Republic of the Philippines) that I don’t owe no one or repay no one in the fulfilment of my duty in return for the nomination and confirmation of my position, so help me dear God.


  23. Ernie Adamos says:

    With these insertions in the oath of office during the induction we can hope better that the official being a head of a government institution or especially in the Judicial Department, he or she can act independently without any pressure from anyone or from outside source of his or her department. And probably if he or she makes a mistake, we can view the facts better and the process of knowing the truth will speedier.Report