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.

Author: Joanne Corey

Please come visit my eclectic blog, Top of JC's Mind. You can never be sure what you'll find!

8 thoughts on “My US Supreme Court plan”

  1. Hi JC. Another very insightful piece. If I understand correctly, you suggest that if Biden-Harris wins, they should be given the right to pick two SC judges yes? That would make 11 judges- and the Republican party should forego their right to pick two judges going forward. This would alleviate the current imbalance, though I’m guessing that such reform needs to pass through Congress hence Democrats need to get the Senate and Presidency back. I didn’t quite follow what you meant when you said eventually it will go down to 9 judges? Sorry my grasp on US public law and Administration has mainly triggered since the drama of 2016 election so I may have missed some obvious points. I also agree re lifetime appointment, its a sound logic when operating under the assumption that SC judges selected have unblemished records of behaviour and are truly trusted to be objective interpreters of the law. Not what was seen in the past two hearings, the latest who said that climate change was debatable. Yikes – giving them the keys to forever is terrifying. What do you think of also increasing the number of votes required for a Senate Supreme Court judge confirmation? Right now it’s through a slim majority which means decisions made are polarised based on tribal affiliations. Do you think that by increasing the number of votes it will help make it a more objective and non-partisan decision? Excuse these endless questions and thanks again for these very helpful reflections.

    Liked by 1 person

    1. Thanks for your questions. I’ll try to give cogent responses, although they will be somewhat hampered by the convoluted nature of US governance and the horrible political complications of the last two decades.

      So, yes, my proposal would only temporarily increase the number of justice to eleven. Because future Republican presidents would have to forfeit their next two vacancies, over time we would get back to only having nine justices again. You are correct that Congress would have to pass a law that the president would have to sign to have any reform of the Court, such as adding seats or codifying the timeframe in which nominations are considered. (The Constitution does not establish the number of justices for the Supreme Court. It has ranged from as few as five to as many as ten, although there have been nine for over a century now.)

      The topic of how many votes are needed for confirmation is an interesting one. It used to be that senators voted on the qualifications of the nominee, not on partisan issues. When Ruth Bader Ginsburg was confirmed in 1993, the vote was 96-3.

      Under what had been long-standing Senate rules – and these are rules that the Senate sets for itself every two years – nearly all legislation other than budgets and all confirmations had to meet a 60 (of 100) vote threshold to end debate and be brought to the floor for a vote. This is where the filibuster comes in. What evolved over time was the use of the filibuster not to try to persuade colleagues to support your point but to kill anything that didn’t have the sixty votes needed to end the filibuster and put the issue to a vote. As fewer and fewer issues became bipartisan, it was impossible to get 60 votes, which caused horrible gridlock. When the Democrat Harry Reid was Majority leader in the Senate but didn’t have 60 senators in his caucus, there was a rule change to remove the filibuster on judicial appointments other than Supreme Court because Mitch McConnell, who was then leader of the Republican minority kept blocking votes on President Obama’s judicial nominees. When the Republicans gained the majority, McConnell also applied the rule against filibuster to the the Supreme Court, so that is why justices can now be confirmed with only a slim majority when traditionally they would have needed at least sixty votes. Sadly, unless the senators go back to the day of voting for the good of the people rather than partisan concerns, I don’t think we can go back to the sixty vote threshold. I hope this background explains better also why I talked about bringing back the “talking filibuster” so that a senator can’t totally block a vote just because they have 41 senators willing to back them up.

      Part of the reason I want to put into law the timeframes is that, when the Republicans were refusing to consider Obama’s nomination of Merrick Garland, there was talk among Republicans that, if Hillary Clinton won, they would refuse to consider her nominee for her entire term. This would fly in the face of ethics, good governance, and Constitutional responsibility, but would not have technically been illegal. There are a whole raft of things that have happened during the Trump administration that are unethical but not illegal, because no one ever thought to make a law about it. There is already a proposal in the House to codify a number of issues that had previously been followed just as matters of good governance.

      I hope this reply has been clarifying. I appreciate your even trying to follow the sometimes byzantine nature of the US system.

      Liked by 1 person

      1. Wow thank you SO MUCH for sharing this level of detail and explanations Joanna, really appreciated and I learnt alot of new things. I never new RBG was voted with a 96-3 ratio… so back in 1993 (and under the Clinton era) the Senate wasn’t as divided as it is now. How fascinating and sad at the same time. And the filibuster rule! Gosh thats how the vote ratios today came about, I’ve heard of this term but never dug deep to figure it out. I pray with all of my heart that there will be a blue wave in November and ethics can be codified and much needed reform implemented. I know a few people have said the Dems shouldn’t play nice if they get power again but I hope there is a way out of this current nightmare that will be both impactful but still dignified. Watching and hoping for the best for the USA in the next few weeks…

        Liked by 1 person

        1. Thanks so much for your well wishes. Joe Biden was a senator for a long time when there was a lot of bipartisan work accomplished and we hope that that will help make reforms sensible and fair so that they will also be supported by the more moderate Republicans. The moderate Republicans have, for the most part, been quiet in the past couple of decades in order to avoid being challenged in primaries by hard-right – on now Trumpian – opponents. Unfortunately, this has meant that they haven’t been willing to support anything proposed by Democrats, not matter how sensible or popular. I’m hoping that these members of Congress who actually want to cooperate in governance for the good of all the people will join with Democrats to move our country in a positive direction.

          It’s also possible that the Republican party will permanently fracture into a populist/Trumpian entity and an actual, traditional conservative entity. We’ve had the same two major political parties for a very long time now; perhaps that will end.

          Liked by 1 person

          1. Thanks Joanna. I think the best legacy Biden could leave for the US, if he becomes President, is to help heal the country return to cooperation and good governance. Having two parties monopolise the public administration of any state for too long is bound to produce these dilemmas. I come from a country where only one party has held power for over 60 years contested by various weaker and smaller opposition parties, and when they finally lost the elections in 2018 by a coalition comprised of various marriages of convenience (and not through shared ideals and philosophies), it opened the floodgate to more splinters and fractions. Every country is complex, but USA foreign policy impacts such a vast chunk of the world, and we are all looking at November with curiosity and hope.

            Liked by 1 person

            1. I share in your hopes for the US. Good national leadership, cooperation, and governance will be a big step, but I’m also very concerned about the divisions among the American people that were always there but were not so overt and toxic as they are now. As we are seeing in many other nations, there is a tendency among a now very vocal minority in the US toward authoritarianism which flies in the face of our democratic principles. There are millions of people who have been so devoted to Trump that they don’t believe facts anymore, most tragically facts about COVID.

              My hope for my country and for yours and all others is that we grow in solidarity around care for one another and for the planet and that that care and concern are expressed through good governance.

              Liked by 1 person

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