A Modest Proposal: Reforming Supreme Court Justice Selection

I don’t have much interest in adding my voice to the thousands spilling ink on Senate Republicans’ tactics regarding the Supreme Court vacancy. All I’ll say is that I disapprove, but for anyone who believes that Democrats wouldn’t be doing the exact same thing were the situation reversed, well, there’s a bridge I’d like to sell you.

I’m much more interested in taking the long view and talking about how to avoid this kind of gridlock in the future, and also how to avoid the opportunities for such transformational and society-altering appointments to begin with. Here is the proposal:

1) Expand the Supreme Court to eleven justices instead of nine.

2) Each justice serves a twenty-two year term, staggered such that one retires and is replaced by a new justice every two years.

3) Retired justices can fill in to hear and decide cases when one or more of the sitting justices is recused. This way, the Bench is always full (assuming enough retired justices would be willing to do this).

Similar ideas have been floated in the legal academy. Most prominently, Jack Balkin at Yale Law School has suggested maintaining nine justices and granting each an eighteen-year term with the same two-year staggered retirement system. The beauty of such an idea is obvious. As life expectancy has increased and the Supreme Court has thrust itself into more and more issues at the forefront of American political life, the absurdity of life tenure has grown clearer. The power that a justice can exert over a lifetime career is greater than democracy can withstand, particularly from an office-holder who was never elected. This may not have been the case at the nation’s founding, when the Supreme Court had less importance and people lived shorter lives, but it is surely the case now.

Moreover, under this proposal, each president gets to appoint two justices in one presidential term and four justices over two terms. There is no more randomness of a justice dying or retiring suddenly—nine of the last ten justices to leave the Court served at least eighteen years, so very few would leave the Court unexpectedly before the expiration of their term. Justices would also no longer strategically time their retirements to coincide with the election of an ideologically similar president. Of particular relevance to current goings-on, it becomes impossible for one party to reasonably claim that a sitting president should not fill one of the seats that this proposal explicitly entitles the president to fill.

The drawback of the Balkin idea is that it gives one president the power to change the Constitution. Most presidents these days serve two terms. Replacing four out of nine justices is almost a majority of the entire Court, essentially letting one president and one party change the Constitution just for winning two consecutive presidential elections—something most incumbents have pulled off for three generations. A modified version of the Balkin idea is a twenty-seven year term with retirements staggered every three years so that in order to appoint four out of nine justices on the Court and “change the Constitution,” a party must win three consecutive presidential elections, a much more rare feat in modern times.

I accept the criticism levied against the Balkin proposal but think that the modification also misses the mark. A twenty-seven year term is excessive. Less than one-fifth of justices ever have even served that long. Admittedly, the ones who have disproportionately date to recent times, but not so disproportionately that there’s evidence for a twenty-seven year term as the new norm. Only five of the last ten justices to leave the Court served more than twenty-seven years. More importantly, the modification ruins the once-every-two-years balance of power that guaranteed each president would have the same power to reshape the Court. Most presidents would get only one appointment to the Court in a four-year term. A few would get two.

Instead, by expanding the Court’s membership to eleven justices, I maintain the balance among presidents and still require a party to win three consecutive presidential elections in order to appoint a majority or near-majority of the justices. A twenty-two year term is still long, although eight of the last ten justices to leave the Court served at least that long, as have three of the eight sitting justices, with a fourth to hit the mark in August. Still, as far as I know, it is a longer term than constitutional court judges have in any other constitutional democracy (no other constitutional democracy has life-tenured constitutional court judges). Nevertheless, it is hard to see an alternative that maintains equity in shaping the Court among presidents, does not let one president unduly influence the Court, and respects the vaunted importance that Americans have traditionally attached to an independent federal judiciary.

The proposal’s numerous advantages over the current system can be summed up as vastly reducing the effect of random events on the Court’s composition, instituting reasonable term limits, creating equity among presidents in their selection of justices, allowing a full Court to hear every case, and moderating the Senate confirmation process because there is no randomness to which party gets to fill vacancies. Parties fill vacancies when they win presidential elections.

The substantial benefits come with some caveats, however. First, while it would not happen often, if a justice were to die or retire before the expiration of the twenty-two year term, how would that be handled? There are a few options here. The president could unilaterally appoint someone to serve until the end of the two-year cycle, and then appoint a justice to a twenty-two year term with the Senate’s advice and consent. This means that, unless the retired or deceased justice was within the last two years of his term, every other justice would serve an extra two years in addition to the twenty-two year term in order to let the departed justice’s seat be filled promptly. This method is used when a sitting senator resigns or dies. The governor of the senator’s state appoints a temporary replacement until the people elect someone else.

Alternatively, to avoid giving other justices an extra two years on the bench, the president could simply appoint someone to serve out the rest of the twenty-two year term, either unilaterally or with the Senate’s advice and consent, and then keep every other justice on the same appointment and retirement schedule. While preferable because of that last feature, this gives the president an extra appointment beyond the two per term and so it does not alleviate the possibility of a situation like the current one, when a justice dies and leaves the president with an unexpected opportunity to transform the Court that no one could have foreseen. The prospect of such a vacancy arising after the president has already made two appointments in his term is a further complicating factor, although perhaps the appointments could be placed such that one is near the end of the term in order to reduce the likelihood of this situation.

A third solution would be to allow the least senior retired justice to serve out the term, either until the end of the twenty-two year term or until the end of the two-year cycle (probably the latter makes more sense). Then, the president would appoint a new justice to a twenty-two year term.

A second difficulty lies in structuring the term’s beginning and end dates. It would be easy enough to say that terms will begin on October 1, 2018; October 1, 2020; October 1, 2022, etc. But this formulation would incentivize continued partisan fighting over confirmation because the opposition party would have an incentive to wait as long as possible before confirming a nominee so some of the twenty-two year term elapses before the new justice is even seated. It is possible to give justices a fixed twenty-two year term, with the twenty-two years beginning on their confirmation date, but if the Senate takes a while to confirm a nominee, or rejects one or more of the president’s nominees before confirming one, the beginning of the twenty-two year terms would slide later and later. This raises the prospect that eventually, there would be only one vacancy in a presidential term, for the other twenty-two year term set to expire during that president’s term would not actually expire until after the presidential term did.

For this reason, I would probably favor a fixed date to the justice’s term’s start, such as October 1, and then perhaps allow the appointment process to begin several months before the seat on the Supreme Court technically becomes vacant. That method allows time for a full and exhaustive nomination process, including the rejection of a nominee or two, without the process bleeding into the justice’s term. While it would be a bit strange for the Senate to confirm someone to a vacancy that technically had not yet arisen, there’s no legal reason that this could not happen. Of course, if the Senate confirms a justice before the term’s start date, the justice would not begin service until the term’s start date.

Third, allowing retired justices to sit when there have been recusals leads to the bizarre result that the Supreme Court’s composition is unfixed and can differ from case to case. Recusals are infrequent, but they certainly happen, occasionally in important cases. For example, Justice Kagan is recused from the pending affirmative action case concerning college admissions at the University of Texas. It may seem too strange to potentially change the outcome of a case by allowing another justice to sit, a justice who would be selected from retired justices either randomly or based on which retired justice has the least seniority. If this part of the proposal is unacceptable, it can still be adopted with just its first two components, which are its major thrust and do not depend in any way on the third component. But I did want to highlight that for the first time ever, there would be retired justices who still want to participate in cases: in the present system, justices retire only when they no longer want to continue serving, while under this proposal, some justices who want to continue serving would have to retire because their term expired. It may be useful to find a way to benefit from justices willing to continue their service.

Reasonable people could prefer many different solutions to the aforementioned problems. Other than the original three-point proposal, I do not attempt to offer a one-size-fits-all theory for how to make changes to the Court. There is room for compromise, and none of the potential solutions is as important as the skeleton of the proposal laid out in the first place.

The more pressing issue is that, unfortunately, the Constitution guarantees federal judges life tenure. While the size of the Court could be changed to eleven by mere congressional statute, a justice’s term could be limited to twenty-two years only by amending the Constitution, which is nearly impossible to do. This proposal suggests sensible term limits in a careful way that does not give one president too much power. The resulting Supreme Court would be more democratic and balanced, with justices seated after a less politicized confirmation process. All of these features indicate that this “modest proposal” is indeed modest. Alas, because of the system that the Framers froze in place at the ratification of the Constitution, enacting this proposal would require a political movement that is not modest at all, one with sufficient force to amend the Constitution. I hope that at some point, the public becomes concerned enough with the generally un-sexy issue of the Supreme Court that such an amendment could come to pass.

Source by : http://thepolitic.org/a-modest-proposal-reforming-supreme-court-justice-selection/

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