Yesterday’s post focused on the unending stream of ideologues being elevated to the federal bench under Trump.
Assuming–as even the least optimistic among us must–that massive turnout in 2020 rids us of this ignorant, corrupt and malevolent administration and enough of its feckless enablers to change control of the Senate, how might a new administration rescue the federal courts from the partisanship that is tarnishing both their operations and reputations?
My graduate students have some suggestions.
In the take-home final examination I gave my graduate Law and Public Policy class, the following question was one of three from which they could choose to submit a concluding essay:
Over the past several years, the federal courts, and especially the Supreme Court, have come to be viewed by both political parties as political prizes. Rather than choosing nominees with sterling legal credentials, appointments to the courts have increasingly been based upon the nominee’s perceived political ideology. You have been elected President, and your party controls both houses of Congress. You want to return the courts to their status as respected impartial arbiters of the law. What changes would you make to the composition of the courts, the nomination process or otherwise in order to accomplish this?
I was surprised by the number of students who chose this question, and impressed by the thoughtfulness with which they approached it.
A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.
Another popular proposal was the creation of a nonpartisan advisory committee composed of legal scholars, sitting judges and representatives of the ABA, who would be charged with coming up with–and thoroughly vetting– a slate of candidates from which the President would choose his nominee.Some students suggested analogous processes for the lower courts.
In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices–making their tenures long enough to remove the threat of political pressure that prompted the Founders to prescribe lifetime terms, but short enough to ensure more frequent turnover.
One student supported implementation of the “Supreme Court Lottery” advocated by legal scholars Epps and Sitaraman. Under this proposal, “each judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court. When cases are heard, an appropriate number of these judges would be chosen at random to sit on the Supreme Court panel.”
Several students noted the need for a process to increase what one called “demographic accountability”–a judiciary that more closely reflects the composition of the population, and suggested ways this might be accomplished.
All in all, the number of students who chose to answer this question and the various suggestions contained in those responses suggests the existence of widespread agreement on at least two things: 1) the courts are in danger of losing legitimacy (perhaps it would be more accurate to say “in danger of continuing to lose legitimacy–a loss that really began to gather steam with the decision in Bush v. Gore) and 2) partisanship and extreme partisan polarization are to blame.
My students are not lawyers. I teach in a school of public affairs, not a law school, so some of the suggested “reforms” were impractical or otherwise fanciful. But the students in my graduate class tend to be older, employed, with families, and they are generally thoughtful and civically-engaged. During the semester, virtually all of them demonstrated deep concerns with the dysfunction, chosen ignorance, and theatrics that have replaced working governance.
Of course, if the people who didn’t bother to vote in 2016 stay home again in 2020– if the electorate does not come out en masse to evict the criminals, buffoons and fellow-travelers who are running roughshod over America’s ideals and Constitution– suggestions for reforms will continue to be beside the point.