Posted on by rjonakait

Stitching a Different Supreme Court Nine (concluded)

We have been speculating on ways to make a less political Supreme Court and have focused on a proposal in which the president could nominate a new Supreme Court Justice every two years. This, of course, would mean that the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine Justices at random, there is another possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Reserve judges would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are also major leaguers and remain on the team. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for about thirty years; Chief Justice Roberts and Samuel Alito have been on the Court for over fifteen years and are expected to serve for another decade or more.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games in which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett should end. Such maneuvers that strengthen the notion that the Court is not a neutral body should lessen. Similarly, the recent situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

Posted on by rjonakait

To Recuse or Not to Recuse? Let’s Make the Question Easier (concluded)

If the president could nominate a new person to the Supreme Court every two years, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, which has many positive benefits, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. Judges on reserve would be available whenever one of the regular nine was unavailable for reasons such as illness or was recused by a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for thirty years and Stephen Breyer for twenty-seven. Chief Justice Roberts and Samuel Alito have been on the Court for sixteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight, and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee, and a bigger pool of possibilities should lead to better justices.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.*

The kind of partisan games we have witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end, maneuvers that strengthened the notion that the Court is not a neutral body. Similarly, the present situation calling for the resignation of a justice as recently happened with Stephen Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it guaranteed Biden any appointments in the next four years. Instead, it should start after the next presidential election with the newly elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

———————————————————————————

*We have seen that when they control the Senate, Republicans are willing to refuse to consider a Supreme Court nominee put forth by a Democratic president. This tactic could be prevented by requiring that the Senate vote on a Supreme Court nominee within ninety days after the nomination and that failure to act will be automatic approval of the appointment. If the nominee is voted down within ninety days, the Senate shall vote on that new nomination within ninety days and again, no action equals approval. With the third nomination, again the Senate must act within ninety days but then the nominee is approved if forty Senators vote in favor or if forty percent of those voting are in favor. The cries may go that this is not approval within the meaning the Constitution, but that document does not define “approval,” and the Senate has required that nominees survive a filibuster. If the Senate can say that fifty-nine Senators is not enough for approval, why can’t the Senate say that forty is sufficient?

Posted on by rjonakait

Partisan Hacks, Comprised of

Before the ink was dry on her nomination to the Supreme Court, right-wing news articles and fundraising emails attacked Ketanji Brown Jackson. One said that she had “taken radical, liberal positions throughout her career” without giving even a hint as to what those positions were. A different writer labeled her “a politician in robes.”

The writings did not contain a glimpse of irony or even the slightest acknowledgement that only recently conservative Supreme Court Justices have themselves been criticized as partisans. This criticism came as a result of issuing opinions with scanty or no reasoning that followed their own political predilections and that of their patrons; allowing unconstitutional laws to be enforced; and bending judicial norms to hear cases that have political overtones.

The conservative justices had to know that their actions would look political and produce vehement criticisms, but you might expect them to simply ignore the critics. When I was a baseball umpire, I expected disagreement with some of my calls. I knew that I should not umpire if I could not handle criticism. If you take a judgeship, you should not be surprised by criticism. And if anyone should feel secure from critics, it would be an insular band of people who have both power and life tenure.

However, the comments about the Court made some justices feel like paper flowers in the rain.* Ignoring the fact that defensiveness often gives greater credence to the critics, several justices made replies. The most quotable “defense” came from Amy Coney Barrett who announced that the Supreme Court “is not comprised of partisan hacks.” Of course, it would have been even more newsworthy if Barrett had said that the Court was filled with partisan hacks, but, nevertheless, the whine indicated how touchy some members of the Supreme Court are.

Now, if you are looking for self-conscious irony, don’t go to the conservatives on the Supreme Court. Whether or not she is a partisan, she is sitting on the Court because of naked partisan power, and she made her statement in a place that honors a person no one would ever sanely label as nonpartisan, Mitch McConnell. And yes, if she has an ounce of gratitude, she should be indebted to him for his partisanship.

If Barrett, for unfathomable reasons, thought her ex cathedra-like statement would end discussion of the topic, she was undercut by her colleague Justice Samuel Alito. A month or so after Barrett announced the absence of judicial partisanship, Alito made a speech to the Federalist Society, a group not widely known for its even-handed policies. Many sources concluded that this speech was so highly partisan that it should have raised ethical concerns for a judge. However, Supreme Court justices are not bound by the ethical standards set for other judges—disturbing yet true.  So, on the one hand, we have Barrett’s assertion, not supported by any evidence or reasoning, about the lack of partisanship on the Court, and then we have the stark evidence of a partisan speech by a Justice. Chicolini’s classic comeback in Duck Soup comes to mind: “Well, who ya gonna believe, me or your own eyes?”

But maybe, I thought, I was being unfair to Barrett. Perhaps her statement was more limited than I had first believed. Reports say that she is smart and a meticulous judge. She, no doubt, tries to use words precisely. She asserted that the Court “is not comprised of partisan hacks.” I went to H.W. Fowler’s classic A Dictionary of Modern English Usage. In it he discusses the difference between include and comprise: “[T]he distinction seems to be that comprise is appropriate when what is in question is the content of the whole, and include when it is the admission or presence of an item. With include, there is no presumption that all or even most of the components are mentioned; with comprise, the whole of them are understood to be in the list.” With her use of comprise, then, Barrett was only telling me that not all the Supreme Court Justices were partisan hacks. However, she might be signaling–with lawyerly precision–that it includes some. Or perhaps she is conveying that some justices are partisan but not hacks or hacks but not partisan? Alito comes to mind again. Many commentators, citing several examples, say that Alito is a partisan. They almost never label him a hack; instead, they almost always refer to how smart he is.

Of course, I may be giving Barrett too much credit for using words precisely. After all, she did use the phrase comprised of, a definite grammatical no-no. The prickly Fowler believes that the English language might be better off with the banishment of comprise: “This lamentably common use of comprise as a synonym of compose or constitute is a wanton and indefensible weakening of our vocabulary.” Perhaps when it comes to words, Barrett is not a conservative standard bearer. Even if that might be laudable, comprised of is not to be praised, at least according to Benjamin Dreyer who writes about comprise in the immodestly titled Dreyer’s English: “I confess: I can barely remember which is the right way to use this word.” He says that he looks it up each time he is tempted to use it. Dreyer tells us that it is correct to say, “The English alphabet comprises twenty-six letters.” And this, too, is right: “Twenty-six letters compose the English alphabet.” But it is wrong to write, “The English alphabet is comprised of twenty-six letters.” Dreyer writes, “As soon as you’re about to attach ‘of’ to the word ‘comprise,’ raise your hands to the sky and edit yourself.”

Of course, you might tell me to lighten up. Don’t parse her words so closely. C’mon; you get the gist of her meaning. Don’t take her so literally. It’s not a big deal if she was imprecise. But, my friends, she is a Supreme Court justice, and when she writes an opinion, no matter how loose its reasoning, no matter how imprecise it may be, it will have important consequences. Barrett may be making decisions that control us for the next thirty or forty years. And precision should matter for a Justice. As Fred R. Shapiro writes in The Oxford Dictionary of American Legal Quotations, “Law is the intersection of language and power.”

I wonder if Barrett will continue to suggest how nonpartisan the Court is if Ketanji Brown Jackson ascends the Court. Conservatives of all stripes are accusing her (Jackson) of being partisan. What kind of hypocrisy is this? Well, we can rest in the assurance from Barrett that she, at least in her own opinion, is not a political hack. Or can we?

*“Only paper flowers are afraid of the rain.” Konstantin Dankevich.

Posted on by rjonakait

Stitching a New Nine this Time (concluded)

If every two years the president could nominate a new person to the Supreme Court Justice, the Court could have more than nine Justices. Instead of having the entire group decide all cases, which could be unwieldy, or instead of drawing nine from all the Justices, there is another intriguing possibility. The nine most recently appointed Justices would regularly render the Supreme Court decisions. The displaced Justices would move to a reserve status. That judge would be available whenever one of the regular nine was unavailable for whatever reason such as illness or a conflict of interest. If one of the regular nine died or resigned, the last regularly sitting justice would become one of the regular nine again until another Justice was appointed at the scheduled time.

An obvious question arises. Would this violate the constitutional provision that federal judges have life tenure? (The Constitution actually says judges “shall hold their Offices during good Behaviour.”) I don’t think so. Judges who were appointed more than eighteen years ago and moved to the new reserve status would still hold office. Chief Justice Roberts in his nomination hearing said that he planned to judge like an umpire calling balls and strikes without his personal values affecting his decisions. Let’s stay with the baseball analogy. Nine players take the field, but the other players on the roster are available to come into the game if needed. The players on the field are in the major leagues, but those in the bullpen or in the dugout (I wanted to say “on the bench.” Ha. Ha.) are major leaguers and are on the team, too. With this proposal, the nine Judges actively sitting on the bench (Oxymoron? Actively sitting?) are Supreme Court Justices, but those back in chambers waiting to be called upon would also be Supreme Court Justices, and they can stay in that office during good behavior.

With this proposal, judges would regularly decide cases for eighteen years. That eighteen-year period has advantages. Among other things, it would move the Court to the practice that it has had for most of its history. Before 1959, the average length of tenure on the Supreme Court was thirteen or fourteen years. Since 1959, it has been about twenty-five years. Current Justices have served longer. Clarence Thomas has been serving for twenty-nine years and Stephen Breyer for twenty-six. Chief Justice Roberts and Samuel Alito have been on the Court for fifteen years while the other Justices have been sitting for shorter periods.

That eighteen-year period could also lead to an expanded pool of people to be considered for a nomination. Wanting to leave as long a legacy on the Supreme Court as possible, presidents today are not likely to appoint someone who is sixty or older. God forbid, that person might be on the Court for a mere twenty years! Find someone who is younger and expect a tenure of thirty or more years. Thus, Amy Coney Barrett, the last person appointed to the Supreme Court, went on the bench when she was forty-eight and her two immediate predecessors on the Court, Brett Kavanaugh and Neil Gorsuch, were fifty-three and forty-nine, respectively. Fifty-five is the oldest age at which any of the present Supreme Court Justices was appointed, and Clarence Thomas was only forty-three. Knowing, however, that the most active period of judging will be “only” eighteen years, a president can consider a wider range of age and experience for a nominee.

Giving every president an appointment every two years may also reduce the partisanship of the Supreme Court and certainly should reduce the perception of partisanship. Currently it is mere chance that determines how many, if any, nominations the chief executive will have. Some presidents have a greater opportunity to pack the court with ideological bedfellows than others. With this reform all presidents would be treated equally. The appointments might be just as partisan as now, but the partisanship is more likely to be balanced and in sync with “the people” as we elect presidents.

The partisan games we have just witnessed during which the Senate denied a consideration of Merrick Garland but forced through the confirmation of Barrett would end. Such maneuvers that strengthen the notion that the Court is not a neutral body might end. Similarly, the present situation calling for the resignation of Justice Breyer so that “our side” can appoint a younger person, which also tends to treat the Court as just another partisan body, should disappear.

This reform should not put be into place immediately. Of course, Republicans would oppose it if it gave Biden two appointments in the next four years. Instead, it should start after the next presidential election with the newly-elected president getting his/her first appointment on July 1, 2025, and one every two years thereafter. Perhaps this might even lead to a more information-driven presidential campaign with candidates, knowing they will have two and only two nominations, revealing to the electorate who those candidates might be.

I am sure there are downsides to this proposal, but would it really be bad to treat all presidents equally? And why is it bad if unelected Justices decided cases for “only” eighteen years when most Justices before 1960 did not serve that long?

(This essay will be posted in order on Monday May 3)