Taking on the Problems with Courts

A Biden Administration Should Go Big and Go Long


By the time you read this, the Barret hearings will history. As if we needed reminders, the way we choose Supreme Court justices and most other judges is a mess. We can do better. We have discussed a couple of these concerns before, but this is a good time to take inventory.

What are the Issues?

There are many, not all of them obvious. I will note the main ones here. For a fuller discussion, I recommend a recent posting in the blog The Weekly Sift.

  1. The courts, especially the Supreme Court, should be as above politics as possible. But the Supreme Court should reflect where the nation generally wants to go, consistent with law. Wouldn’t it also be better if the Court looks more like America?
    Having some balance of men and women, race, regional and professional backgrounds, and a diversity of religious profiles would make for a better court
    . Not a quota system, but let’s acknowledge the value of diversity in this institution.The Court we are looking to have meets almost none of those criteria. We are about to have a Supreme Court dramatically

    more conservative than the country. It does not reflect decades of popular votes.Democrats won 6 of the last 7 popular votes. Yet 8 years of White House occupancy by someone not elected by the people has badly

    skewed the Court. That is not a new trend. Take a look at the last 30 years or so.

  1. The opportunity to appoint is a random lottery. Some presidents appoint quite a few Supreme Court justices, some none at all. The outcomes depend on the vagaries of health and age of individual justices. That is a nonsensical way to staff an entire branch of government at the federal level.
  2. The current mess of a system makes the Supreme Court a political hot potato in perpetuity. For many, it makes them one issue voters. Far better to set up planned replacements on an evenly spaced schedule. There would be the occasional exception, but a better system would regularize the process.
  3. The power of the Senate Majority Leader to control nominations is excessive. Moscow Mitch refused to even have a vote for a nominee almost a year before the next inauguration. This year, he is ramming one through in 4 days in the middle of voting for an election. An election which his party is expected to lose. Having the power and using it properly are two very different things.
Rebalancing the Supreme Court

I have come full circle on the issue of expanding the Court. I certainly see the issues, but let’s face the facts. The Court has already been “packed.” Assuming the current nominee goes through, two seats were blatantly stolen.

I would encourage the Biden administration to say that plainly. Announce they were adding two seats, if not three, to right the wrongs done. Announce proposing a system to take these issues of the table. Reform the process from top to bottom. It is the right thing to do. Not doing it rewards theft and naked power.

The Court, by the way, has varied from 6 to 10 members over its life, and not in a straight numerical process. Otherwise, we buy in to a theft that runs 30 years. There should be a cost for such malfeasance. This is not “packing” the Court. It is rebalancing it.

Standards for Federal Courts

Trump has famously appointed some judges, with the consent of his Senate buddies, whose sole qualifications are loyalty to him and/or extreme views. Their own professional societies have identified them as unsuitable and unqualified. At the least, such nominations should require a super majority in the Senate to pass.

Should Judges be Elected?

No. Many states do this in varying ways, none of which are very useful. States have the right to decide this themselves. But I would welcome a reform movement in every state to quit doing this. Having judges campaign and solicit funds is a dumb idea.

How Much Say Should the Senate Have?

A lot, according to the constitution. But the ability to defer a nomination for almost a year or to ram one in over a few days during an election make no sense. Senate rules should be reset to set a reasonable timeline to consider a candidate in an election year (6 months before an election?).

Mandate hearings and a vote within a reasonable time of a nomination (3 months?). One person having the power to completely control the process is completely wrong.

Nothing Lasts Forever. That Should Include Appointments

Several good suggestions are out there. The center of mass seems to be setting the terms for a judge or a justice at 16-18 years maximum. Phase in that system. Every president, beginning in 2025 can expect to nominate two justices. Makes great sense to me.

17 days until the last vote is cast.

    Bill Clontz

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