In searching this morning’s post on the trend toward younger appointees to Federal judgeships, I came across an interesting essay by legal scholars E. Donald Elliott and John Attanasio from last October titled “Fixing a broken process for nominating US Supreme Court justices.”
Their statement of the problem is familiar:
President Donald Trump has nominated two Supreme Court justices during only 19 months in office.
Senate Majority Leader Mitch McConnell stated after Brett Kavanaugh’s confirmation that Trump might have the opportunity to make a third nomination during one term in office. By the end of a possible second Trump term, he could choose a majority of the Supreme Court.
While the Supreme Court is not a representative body, justices on that court have strong, well-developed and significantly different judicial philosophies and approaches to constitutional and statutory interpretation. Presidents openly admit that they make their nominations significantly based on these factors. Under the present system for nominating Supreme Court justices, voters in some elections have two or three times more influence over Supreme Court appointments than those in others.
This is anomalous and unfair because voters in one election usually have the same opportunity to elect government officers as those in another. But because a congressional statute fixes the size of the court at nine, some presidents will have the opportunity to nominate more Supreme Court justices than others, based on the happenstance of deaths or resignations.
They provide quite a bit of detail in written form but this graphic illustrates their point quite vividly:
Most reforms suggested to remedy such problems, such as limiting Justices to a 12-year term, would require a Constitutional amendment—which would be nearly impossible. Others, like simply increasing the size of the Supreme Court to allow the next Democratic President to rebalance it ideologically (and make up for cynically keeping Merrick Garland from his seat) would set off a game of tit-for-tat. Elliot and Attanasio have a simpler, more elegant solution:
We think this is backwards: Each president should get an equal number of appointments per elected term and the size of the court should fluctuate over time as vacancies occur.
Fixing this phenomenon does not require a constitutional amendment. We are legal scholars who have written across a broad swath of areas including constitutional law. We believe Congress could pass a law providing that a president gets two Supreme Court appointments per four-year term in office.
The Constitution does not dictate the size of the Supreme Court; Congress does.
This new system would mean that the number of nominations a president gets would no longer fluctuate depending upon the vagaries of deaths and vacancies on the bench.
[…]
Under our proposal, Congress could pass a law that stipulates a president would get two nominees, and only two nominees, to the Supreme Court per four-year term. If that nominee were rejected by the Senate, the president would get to keep nominating until one was successfully confirmed. A death or resignation from the court would not entitle a president to name additional justices.
They defend against one obvious challenge to their idea:
Under our proposal, the Senate would have a legally binding obligation to confirm two nominees each presidential term.
Of course, the Senate could still thumb their noses at any presidential nominee, as it did with Garland.
We doubt that this would happen. First, under our proposal, the president does not have to wait for a death or retirement of a justice to nominate. Instead, the president controls the time frame. If presidents make the nominations within several months of their election, we doubt that many Senates would have the temerity to vote down nominees for four years. The argument for delaying confirmation that has emerged since the unsuccessful Garland nomination has been the Senate controlled by the opposition party does not confirm nominees to the Supreme Court within a year of an upcoming presidential election. As presidents would have the right to make nominations as soon as they assumed office, the Merrick Garland problem will likely never happen again.
But suppose the Senate simply refused to consider a president’s nominee either within one year of the presidential election or even before that – what then?
We suggest that Congress pass a statute requiring the Senate Judiciary Committee to hold hearings on any presidential nominee within two months. They would also be required to bring the issue to the floor for a roll call vote within a reasonable time, say four to six months of the nomination.
Failure to meet these deadlines would result in automatic confirmation. Any senator could enforce these requirements.
Some might think that this approach infringes on the constitutional powers of the Senate to make its own rules. We think it would be constitutional, as it gives the Senate a fair opportunity to “advise and consent” as required by the Constitution.
Alternatively, if the Senate fails to meet these deadlines, the statute could imitate the procedures mandated by the budget reconciliation act and require the Senate to bring the nominee to the floor for a vote within a set period of time and prohibit filibuster, as the Senate has now done for judicial nominees.
They argue that their system would have produced a much evener distribution of appointments:
If such a statute had been in effect starting in 1952, the size of the Supreme Court would have fluctuated between seven and 14 justices. Each presidential election would have had equal weight in determining the composition of the court.
This system might reduce the incentive for justices to delay resigning so that certain presidents do not get a nominee, or for the Senate to stonewall a nominee until the next president takes office. Controversy surrounding some individual appointments could diminish.
Other scholars have criticized the current size of the court as too small because it leads to too many 5-4 decisions. These undermine the democratic legitimacy of the court, they argue, by suggesting that rather than applying law objectively, a single swing justice is deciding controversial issues for the country.
Many other notable courts are larger than ours. The Supreme Court of the United Kingdom, created in 2005, has 12 members. The European Union’s highest court has 28 members.
This is not to say that we view the Supreme Court as a representative or legislative body. We believe judges should be constrained by texts. But within those constraints, justices do exercise judgment.
No good reason exists why some presidential elections should count for two or three times as much as others in determining how we are governed.
Two things they don’t account for.
First, their proposal would allow for an even number of Justices to be on the Court, potentially for years on end. Say the provision was already in place, meaning President Trump would already have exhausted his two appointments. (I’m sure we would grandfather this; I’m just using it as an easy example.) Then, one of the current Justices retires or dies in office. We’d be down to eight Justices for the remainder of Trump’s term, allowing the possibility of 4-4 votes that don’t resolve the issue at hand. And, until another Justice died or retired, we’d continue to have an even number of Justices: ten after either a re-elected Trump or his successor takes office in 2021, twelve in the next term, fourteen in the next, and so on.
Second, a legislative fix of this sort court theoretically be overturned whenever it was convenient for a subsequent legislature. Granting that a President would veto any bill stripping him/her of their two appointments, making it possible to do so only in the unusual instance of a supermajority of the opposite party in Congress, one could certainly see a supermajority of the President’s own party changing the rule in his favor. Then again, they could do that now.
Overall, though, this idea is a step in the right direction. It would almost certainly end the sad practice of Justices hanging out as long as they can hoping for a President of their political party to appoint their replacement. And it might well make a Merrick Garland scenario less likely. Indeed, it would be advantageous for a President to make her/his two appointments right at the beginning of the term to maximize their impact.
We’ve been at 9 SCOTUS seats since 1869 (from 1837 save for a three-year anomaly at 10), so it seems like holy writ. But a Court that fluctuated in the suggested manner actually makes more sense. Few believe anymore that Justices aren’t political actors, even partisan ones. We might as well make it reflect election returns in a more systematic manner.
