My US Supreme Court plan

In a comment to this post on my refraining from watching the Amy Coney Barrett hearings, I promised my thoughts on the future of the United States Supreme Court, so here is my attempt to weigh in on a very fraught civics topic. Please note: This is my personal opinion as a citizen. I am not a lawyer or someone with a degree in public policy. This is my brainstorming on the basis of common sense, fairness, and trying to codify what had previously been expected to accord with good governance and ethics.

In the design of the Constitution, the judicial branch is co-equal with the legislative branch (Congress) and the executive branch (president and executive agencies). Its function is to interpret the Constitution and laws. In recent years, the courts have been politicized. The impartiality of their judgements is called into question by the machinations of the politics around their appointment by the president and confirmations by the Senate.

The process as written in the Constitution is that the president nominates individuals for open seats on the various federal courts with the Senate’s advice and consent. Since Mitch McConnell has been Republican majority leader of the Senate, he has failed in his Constitutional duty to give Senate hearings and votes to nominees made by Democratic president Barack Obama, most (in)famously in the case of Supreme Court nominee Merrick Garland but of dozens of nominees to lower federal courts, as well. During the Trump presidency, McConnell has busily filled those seats with Trump’s very conservative nominees, even when those people have been rated “not qualified” by the American Bar Association.

This is an unfair practice but not technically illegal because there are not specific statutes on how the Senate gives advice and consent. My plan begins with codifying what had previously been expected, timely consideration of a president’s court nominees. I propose that all nominees to the federal bench have their Senate hearings begun within sixty days of their nomination and a confirmation vote by the full Senate for those who are advanced by the Judiciary Committee taken within ninety days. The exception would be for a vacancy to the Supreme Court in a presidential election year. A vacancy that occurs on July first or later would be held open for the winner of the presidential election that November.

My sense of fairness also calls for some remedy to the McConnell machinations that have skewed the federal courts to having more Republican appointees than there should have been. If Biden is elected, I think he should be able to make two immediate nominations to the Supreme Court, one for the seat that should have been considered for Merrick Garland because Antonin Scalia’s death was prior to July first in 2016 and one for the seat that will presumably be filled by Trump after the death of Ruth Bader Ginsburg in September. This basically applies the principle that would be codified in the new law. I envision these two seats as temporary. Going forward, Supreme Court openings would be filled by Democratic (or independent) presidents as usual; Republican (or another conservative party that might arise out of the current maelstrom) presidents would forfeit the next two openings that occur during their presidencies, gradually reducing the Supreme Court back to nine justices.

A similar remedy might be able to be applied to the other federal courts, looking at seats that McConnell blocked from being filled by President Obama as a basis.

This is not a perfect solution, as it will not restore the balance and integrity that the courts would have had without these abuses of power, but it would at least give a legal structure to prevent a repeat in the future and some measure of accountability to the parties that acted unfairly.

Another court reform that is being discussed is to put a term length on what are now lifetime appointments. I have mixed feelings about this. I like the concept of lifetime appointments because it removes any thoughts of a justice deciding in a certain way in order to influence their re-appointment for an additional term. On the other hand, it bothers me that there are justices who were rated as “not qualified” or who have been credibly accused of sexual harassment or lying under oath who will serve for a lifetime on the federal bench. If a term of service is imposed, it should be long, on the order of eighteen or twenty years. I would leave the option available for the president to re-nominate a justice for Senate confirmation. As much as I might like to apply a time limit retroactively, I don’t think this is a good idea. For better in some cases and worse in others, those approved as lifetime appointments should be able to remain in those positions.

For the record, there has been much talk about the Democrats, if they control Congress and the presidency, “packing the Court” meaning adding seats permanently to the Supreme Court. This term is meant pejoratively. I think the Democrats will definitely pursue court reform which is needed to prevent what Aaron Blake of the Washington Post has termed “court-stacking” – the Republican gamesmanship that has resulted in the current skewing of the courts toward justices nominated by Republican presidents.

The idea of temporarily adding seats and exacting a penalty against future Republican/conservative presidents is something that I dreamed up on my own, not something that I have seen proposed elsewhere, proving once again that you can never tell what might be top of JC’s Mind.

By the way, in tangentially related Senate procedure, I propose that the filibuster return to its traditional role as a tool to convince other senators to support one’s position. If a senator wishes to filibuster a nomination or piece of legislation, they may take the floor to talk about the issue as long as they wish. When they finish, debate ends and the measure is brought to the floor for a vote. In a body that already gives outsized influence to states with small populations, forty-one of one hundred senators should not have the ability to permanently block what the majority of senators wants to enact.