The Judicial Depoliticitization Amendment
I propose an amendment to the Constitution of the United States of America:
Section 1. The number of Justices serving upon the Supreme Court of the United States shall be nine, including the Chief Justice.
Section 2. Upon the vacancy of any seat on the Supreme Court, the Attorney General or such other officer as the President may designate shall convene a Selection Committee.
The Selection Committee shall consist of three Chief Justices of the Supreme Courts of the several states, chosen by lot, and four Presiding Judges of the several Federal Courts of Appeal, chosen by lot. In the event of a vacancy or a refusal of a chosen member of the Selection Committee to serve, the Chief Justice or, if there is no Chief Justice the most senior member of the Supreme Court, shall appoint a replacement from the same pool of potential members as the selected committee member not serving.
The Selection Committee shall meet and propose three candidates to the President to fill the vacancy upon the Supreme Court within thirty days of the vacancy. No member of the Selection Committee may themselves be proposed as a candidate.
Section 3. Within thirty days of his receipt of the Selection Committee’s three candidates, the President shall nominate one of those three candidates to the Senate.
The Senate shall convene if not then in session, and approve or disapprove of the proposed candidate within thirty days of the President’s proposal by a majority vote. In the event of the Senate’s rejection of a nominee, the President shall thereafter propose from the remaining proposed candidates within thirty days of the Senate’s rejection, and the Senate shall then approve or disapprove of the proposed candidate within thirty days of the President’s nomination by a majority vote.
If for any reason the Senate fails to act in response to the President’s nomination, the nominee shall be deemed confirmed, effective on the thirty-first day after the nomination is made.
If all three nominees are rejected by the Senate, or the Senate by majority vote indicates that none of the three proposed nominees will be acceptable, a new Selection Committee shall be convened within thirty days.
Section 4. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Would this help or hurt? I’m trying to ratchet down, but not completely eliminate, the role of politics in the process of selecting Supreme Court nominees. And yes, I’m proposing tying the President’s hands a lot and the Senate’s hands at least a moderate amount. For instance, by prohibiting court-packing in section 1.
Had this been the Twenty-Eighth Amendment in 2016, we wouldn’t have had the Merrick Garland problem, but we also might not have had Merrick Garland at all. Depending on how the random draw of judges picked for the selection committee went, we might conceivably have had the spectacle of the committee giving then-President Obama three very conservative candidates, from which he would have had to have chosen one, no matter how distasteful that choice might have been to him.
Do you have any constructive revisions to suggest? Even if only a fancier name than “Selection Committee,” which I admit is a boring moniker. (Although, boring might be good in this context. I certainly hope for boring, competent, apolitical nominations.)