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Old 10-10-2018, 11:43 AM
Blalron Blalron is offline
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Depoliticizing the Supreme Court: The Panel Solution

An editorial by two law professors has proposed ways to rescue the Supreme Court from the legitimacy crises that it faces in the wake of the Kavanaugh confirmation. https://www.vox.com/the-big-idea/201...-court-packing


Quote:
Originally Posted by Daniel Epps and Ganesh Sitaraman
Successful reform could take many shapes. To advance the discussion, we’ll propose two ideas here. The first is changing the Supreme Court from nine permanent justices to a rotating group of justices, similar to a panel on a court of appeals. Every judge on the federal court of appeals would also be appointed as an associate justice of the Supreme Court. The Supreme Court “panel” would be composed of nine justices, selected at random from the full pool of associate justices. Once selected, the justices would hear cases for only two weeks, before another set of judges would replace them.

This approach would effectively eliminate the high stakes of Supreme Court appointments, thereby taking the Court out of the electoral and political realm. It would also significantly decrease the ideological partisanship of each court decision. No single judge would be able to advance an ideological agenda over decades of service or develop a cult of personality among partisans. And it would be very difficult to be a judicial activist on any given case because the next panel — arriving as soon as two weeks later — might have a different composition and take a different tack.
Of all the proposals I've read, I like this one the most. Some have proposed term limits for Justices, such as 18 years terms, with each President being guaranteed two nominations per term. But that wouldn't turn down the political heat on this issue at all. If anything, it would turn it up. The Supreme Court will continue be a campaign issue every 4 years. Also, the Justices that have to step down after 18 years will have to look for work after their term ends. Perhaps they will view their time on the Court as an audition for a political career or lobbying gig, and that could influence their decision making.

The Panel Solution greatly lowers the stakes of any individual Judge being confirmed. Sure, there will still be battles fought over appeals court judges, since they will be amongst the pool of potential Justices. But the costs of confirming or rejecting any individual nominee won't be so high.
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Old 10-10-2018, 11:52 AM
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Sounds like a good idea to me, but obviously unconstitutional. Still, if it was put forward as an amendment I would probably tell my legislators to vote for it.
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Old 10-10-2018, 12:16 PM
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Two weeks doesn't sound like a long time to hear a complex case. And would an appeals court judge be disqualified from ruling on a case he has already ruled on in appeals court?

Also, get back to me the first time five conservative judges are empaneled and overturn Roe v. Wade.

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Old 10-10-2018, 12:23 PM
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This pre-supposes that the members of the court of appeals are somehow more diverse? more balanced? What evidence do we have of that? It seems to me that the political process has been very active in nominating / confirming / not-confirming nominees, etc. All this recommendation would do is create an equal level of scrutiny to the greater number of appeals court positions.

Then there would be attention paid to who gets rotated in/out and gaming of the calendar of cases to be considered. Currently, the SCOTUS decides on what cases to consider. Would there be a separate body that makes these decisions and sets the calendar? Who would that be? Who would decide who that would be?

Turtles, all the way down.
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Old 10-10-2018, 12:24 PM
PastTense PastTense is offline
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This is only a recent problem because of the craziness of the current Republican party.

Consider Ruth Ginsberg--way out liberal? You would expect heavy Republican opposition?

She was confirmed 96 to 3.
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Old 10-10-2018, 12:32 PM
Procrustus Procrustus is offline
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Two weeks doesn't sound like a long time to hear a complex case. And would an appeals court judge be disqualified from ruling on a case he has already ruled on in appeals court?
It's plenty of time for oral arguments. The before and after stuff could take as much time as currently.

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Also, get back to me the first time five conservative judges are empaneled and overturn Roe v. Wade.
You raise a good issue. With the composition of the "Court" changing every two weeks, you could get a lot of back and forth on hot button issues. On the other hand, that doesn't seem to happen with the Courts of Appeal, which basically have the same system.
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Old 10-10-2018, 12:55 PM
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This seems pretty terrible in terms of consistency.
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Old 10-10-2018, 01:02 PM
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There does not seem to be any reason why they cannot hear Appeals in benches of 3. With a full Courtn sitting for the occassional Very Important Case. This would also allow them to deal with important but straight forward things. Like yesterday’s case that Kavanaugh sat in.
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Old 10-10-2018, 02:36 PM
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This seems pretty terrible in terms of consistency.
You may have a point there. I wonder if we'd be seeing Roe reversed and reinstated every two weeks. Maybe shuffle the deck less often. I'd reshuffle every year.

Last edited by Blalron; 10-10-2018 at 02:38 PM.
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Old 10-10-2018, 05:48 PM
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Originally Posted by Blalron View Post
An editorial by two law professors has proposed ways to rescue the Supreme Court from the legitimacy crises that it faces in the wake of the Kavanaugh confirmation. https://www.vox.com/the-big-idea/201...-court-packing
...
Fascinating proposal. Is it, or anything close to it, in use elsewhere in the world?
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Old 10-10-2018, 08:51 PM
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You raise a good issue. With the composition of the "Court" changing every two weeks, you could get a lot of back and forth on hot button issues. On the other hand, that doesn't seem to happen with the Courts of Appeal, which basically have the same system.
But the Courts of Appeal are bound by Supreme Court precedent. They cannot say that Roe v. Wade is a pile of pig doots and overrule it. This rotating Supreme Court could do just that.

Could you imagine a gay couple being married and unmarried in two week intervals?
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Old 10-10-2018, 11:42 PM
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Originally Posted by Blalron View Post
An editorial by two law professors has proposed ways to rescue the Supreme Court from the legitimacy crises that it faces...
My impression is that many law professors have an exxagerated belief in a "legitimacy crisis". I doubt "Supreme Court legitimacy" has even cracked the top 10 things people in this country are concerned about.
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Old 10-10-2018, 11:49 PM
HurricaneDitka HurricaneDitka is online now
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My understanding of the typical path a court case takes to SCOTUS is something Ilike this: Appeals Court loser files for cert, some SCOTUS justices review the appeal and give it a thumbs up or down. If it's a thumbs up (granting cert) everyone scurries around writing briefs and collecting signatures from VIPs for a few months. After filing all that with the Court, the day for oral arguments finally rolls around. They spend a couple of hours arguing and asking questions and then everyone waits while the judges write their opinions and they finally get released.

If we went to a 2-week schedule it would seem that you would likely have justices making cert decisions for a court they won't be a part of, and listening to oral arguments they didn't grant cert to, and depending on the schedule, may not be particularly well-informed on.
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Old 10-11-2018, 12:22 AM
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Originally Posted by PastTense View Post
This is only a recent problem because of the craziness of the current Republican party.

Consider Ruth Ginsberg--way out liberal? You would expect heavy Republican opposition?

She was confirmed 96 to 3.
And on the other end, Antonin Scalia was confirmed with no noticeable controversy and a 98-0 vote.
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Old 10-11-2018, 12:28 AM
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My understanding of the typical path a court case takes to SCOTUS is something Ilike this: Appeals Court loser files for cert, some SCOTUS justices review the appeal and give it a thumbs up or down. If it's a thumbs up (granting cert) everyone scurries around writing briefs and collecting signatures from VIPs for a few months. After filing all that with the Court, the day for oral arguments finally rolls around. They spend a couple of hours arguing and asking questions and then everyone waits while the judges write their opinions and they finally get released.

If we went to a 2-week schedule it would seem that you would likely have justices making cert decisions for a court they won't be a part of, and listening to oral arguments they didn't grant cert to, and depending on the schedule, may not be particularly well-informed on.
You also have a continuity issue with their staffs. Would you have a permanent group of law clerks who stayed on as the justices rotated in and out? Let's face it, these clerks would end up running the court.

The alternative is you switch clerks along with justices every two weeks. But then who does all the research? You're not going to get any good work done in just a couple of weeks. So you're going to end up with a lot of under-researched half-assed decisions.
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Old 10-11-2018, 12:37 AM
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My impression is that many law professors have an exxagerated belief in a "legitimacy crisis". I doubt "Supreme Court legitimacy" has even cracked the top 10 things people in this country are concerned about.
A bunch of Republicans trying to tell me the Supreme Court is no big deal and I shouldn't worry about it reminds me a little too much of a bunch of guys hanging out on the street corner telling me I don't need to lock my car doors and leaving my keys in the ignition would be a real time saver for me.
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Old 10-11-2018, 07:24 AM
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Originally Posted by HurricaneDitka View Post
My understanding of the typical path a court case takes to SCOTUS is something Ilike this: Appeals Court loser files for cert, some SCOTUS justices review the appeal and give it a thumbs up or down. If it's a thumbs up (granting cert) everyone scurries around writing briefs and collecting signatures from VIPs for a few months. After filing all that with the Court, the day for oral arguments finally rolls around. They spend a couple of hours arguing and asking questions and then everyone waits while the judges write their opinions and they finally get released.

If we went to a 2-week schedule it would seem that you would likely have justices making cert decisions for a court they won't be a part of, and listening to oral arguments they didn't grant cert to, and depending on the schedule, may not be particularly well-informed on.
That echos what I was saying. It seems that those proposing the Panel Solution are deeply uninformed (or uninterested) in the actual mechanics of how the SCOTUS operates.
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Old 10-11-2018, 07:55 AM
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A bunch of Republicans trying to tell me the Supreme Court is no big deal and I shouldn't worry about it reminds me a little too much of a bunch of guys hanging out on the street corner telling me I don't need to lock my car doors and leaving my keys in the ignition would be a real time saver for me.
A bunch of Democrats told the public the same thing during the FDR Administration and during the Warren Court years. The public has a short memory.
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Old 10-11-2018, 09:54 AM
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I'm starting to think that one small part of the solution is that anyone who held a political appointment in government should not be eligible for nomination to be a judge.

So Kavanaugh and Harriet Miers, as White House counsels, would be out. Bork and Kagan, as Solicitors General, would be out.

This wouldn't solve all the problems, but pushing nominations towards the less politically inclined would be welcome.
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Old 10-11-2018, 10:04 AM
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At various times over the years the Supreme Court has been heavily weighted in both directions, yet they almost always seem to do a pretty good job. This sounds more like "If the rules favor my side it's OK, but if they don't then change them".
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Old 10-11-2018, 10:18 AM
Procrustus Procrustus is offline
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You also have a continuity issue with their staffs. Would you have a permanent group of law clerks who stayed on as the justices rotated in and out? Let's face it, these clerks would end up running the court.

The alternative is you switch clerks along with justices every two weeks. But then who does all the research? You're not going to get any good work done in just a couple of weeks. So you're going to end up with a lot of under-researched half-assed decisions.
The staff would come with them from the Court of Appeals. The Cert. petitions could be reviewed while they're at the Court of Appeals. For example, Judge X is scheduled to sit on the Supreme Court May 1 through 14. The previous November he gets a stack of 45 petitions for review and votes with the other nine judges who are scheduled to hear arguments in May. Review is granted to 5 cases, and the nine judges who will hear the cases in May start getting ready. They hear arguments, have their case conference, and go home to write the opinions, that are issued by the end of June.

I'm not in favor of this approach, but the logistical problems can be addressed.

The continuity problem seems very troubling, without some very strong new rules on stare decisis.
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Old 10-11-2018, 10:24 AM
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Originally Posted by HurricaneDitka View Post
My understanding of the typical path a court case takes to SCOTUS is something Ilike this: Appeals Court loser files for cert, some SCOTUS justices review the appeal and give it a thumbs up or down. If it's a thumbs up (granting cert) everyone scurries around writing briefs and collecting signatures from VIPs for a few months. After filing all that with the Court, the day for oral arguments finally rolls around. They spend a couple of hours arguing and asking questions and then everyone waits while the judges write their opinions and they finally get released.

If we went to a 2-week schedule it would seem that you would likely have justices making cert decisions for a court they won't be a part of, and listening to oral arguments they didn't grant cert to, and depending on the schedule, may not be particularly well-informed on.
This could be considered a feature, not a bug. As explained in the editorial:

Quote:
Originally Posted by Daniel Epps and Ganesh Sitaraman
Cases would also be chosen behind a veil of ignorance. While serving their two weeks, the justices would consider petitions for Supreme Court review. But with such short terms of service, the justices could not pick cases with a partisan agenda in mind; another slate of justices would hear the cases they select.

Activist lawyers would also not be able to game the system, bringing legal arguments and cases based on predictions of which way the Court is likely to decide. In the run of cases, the Court’s decisions would likely be far more deferential to the democratic process and far more tightly linked to precedent. That would be especially true if the new system were combined with a rule requiring supermajority votes to strike down federal statutes on constitutional grounds.

Last edited by Blalron; 10-11-2018 at 10:24 AM.
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Old 10-11-2018, 10:33 AM
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I'm starting to think that one small part of the solution is that anyone who held a political appointment in government should not be eligible for nomination to be a judge.

So Kavanaugh and Harriet Miers, as White House counsels, would be out. Bork and Kagan, as Solicitors General, would be out.

This wouldn't solve all the problems, but pushing nominations towards the less politically inclined would be welcome.

Also, Roberts, Alito, Breyer and Thomas. Sotomeyer had several stints in state government jobs.
Going every earlier, you can forget Warren, Marshall, Souter, Douglas, John Marshall and Rehnquist off the top of my head.
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Old 10-11-2018, 11:04 AM
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Also, Roberts, Alito, Breyer and Thomas. Sotomeyer had several stints in state government jobs.
Going every earlier, you can forget Warren, Marshall, Souter, Douglas, John Marshall and Rehnquist off the top of my head.
That's fine.

You are welcome to go back and history and point out justices with political pasts. I'm not proposing to retroactively remove them from bygone courts. What I am saying is that the situation has now changed with respect to how nominees are viewed, and so we should think about changing the criteria for selecting nominees.

To illustrate, I would say that for government positions generally in the past, the practice has been to avoid putting public officials in positions where there is an appearance of impropriety. That standard has now been trampled upon so thoroughly that the new standard is "innocent until proven guilty," perhaps by a rather substantial standard. So the criteria for nominees has been loosened dramatically; perhaps it is time to tighten it.

ETA: and to be clear, I'm proposing the standard apply specifically to Federal appointments, like Schedule C or higher. Perhaps an exception should be carved out for serving as a U.S. Attorney, unless Trump or future Presidents manage to trash the independence of criminal investigators.

Last edited by Ravenman; 10-11-2018 at 11:08 AM.
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Old 10-11-2018, 11:59 AM
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Personally - I don't like any of these options. The general approach should be to give the courts, and the government in general less power, not more. The more power that is accrued to them, the higher the stakes for each position.

Giving them less power could take the form of, no overturning precedent unless 3/4 of the court is on board. Depowering congress could take the form of requiring a supermajority for any legislation to be enacted, etc. I have no idea how that would ever be implemented.
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Old 10-11-2018, 12:00 PM
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That's fine.

You are welcome to go back and history and point out justices with political pasts. I'm not proposing to retroactively remove them from bygone courts. What I am saying is that the situation has now changed with respect to how nominees are viewed, and so we should think about changing the criteria for selecting nominees.

To illustrate, I would say that for government positions generally in the past, the practice has been to avoid putting public officials in positions where there is an appearance of impropriety. That standard has now been trampled upon so thoroughly that the new standard is "innocent until proven guilty," perhaps by a rather substantial standard. So the criteria for nominees has been loosened dramatically; perhaps it is time to tighten it.

ETA: and to be clear, I'm proposing the standard apply specifically to Federal appointments, like Schedule C or higher. Perhaps an exception should be carved out for serving as a U.S. Attorney, unless Trump or future Presidents manage to trash the independence of criminal investigators.
I can understand this as a "gee, wouldn't it be nice sort of thing", but are you proposing it as something that might possibly be implemented? If so, how would we go about doing that? Without a constitutional amendment, seems like you're left with a gentleman's agreement from Congress not to consider any nominee that falls in that category. Would either party realistically agree to that? And if they did, would such an agreement be worth the paper it wasn't written on?

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Old 10-11-2018, 12:43 PM
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Also, Roberts, Alito, Breyer and Thomas. Sotomeyer had several stints in state government jobs.
Going every earlier, you can forget Warren, Marshall, Souter, Douglas, John Marshall and Rehnquist off the top of my head.
A stint in a government job isn't a political appointment. Warren wasn't ever a political appointment either afaik. Don't have time to check all the others.
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Old 10-11-2018, 01:14 PM
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A bunch of Democrats told the public the same thing during the FDR Administration and during the Warren Court years. The public has a short memory.
Almost every member of my family who could have voted during the Warren Court years, and every member of my family who could have voted during the FDR administration is dead. The supposed hypocrisy and forgetfulness of ghosts doesn't interest me much.
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Old 10-11-2018, 01:19 PM
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I can understand this as a "gee, wouldn't it be nice sort of thing", but are you proposing it as something that might possibly be implemented? If so, how would we go about doing that? Without a constitutional amendment, seems like you're left with a gentleman's agreement from Congress not to consider any nominee that falls in that category. Would either party realistically agree to that? And if they did, would such an agreement be worth the paper it wasn't written on?
Oh, there's a lot of ways such an agreement could be reached. Ten years ago, a small number of moderate-leaning senators decided that they would work together to opppose some controversial judicial nominations in order to avoid the nuclear option. That worked for a few years; maybe that could be a model for one way to accomplish something like this.
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Old 10-11-2018, 01:24 PM
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Personally - I don't like any of these options. The general approach should be to give the courts, and the government in general less power, not more. The more power that is accrued to them, the higher the stakes for each position.

Giving them less power could take the form of, no overturning precedent unless 3/4 of the court is on board. Depowering congress could take the form of requiring a supermajority for any legislation to be enacted, etc. I have no idea how that would ever be implemented.
This is going to come out snarky, because I can't find a way to sugar coat it, but I still have great respect for you: at some point, I think you just need to learn to live with the fact that democracies rely on majorities and pluralities to make most decisions.

And I would say that the case against supermajorities is actually stronger than the case for them. See, for example, the bloodiest war in American history due in substantial part to the impossibility of establishing a supermajority to rid ourselves of slavery. I would say that supermajorities do more to lock in injustice than to provide it.

Last edited by Ravenman; 10-11-2018 at 01:24 PM.
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Old 10-11-2018, 01:45 PM
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This is going to come out snarky, because I can't find a way to sugar coat it, but I still have great respect for you: at some point, I think you just need to learn to live with the fact that democracies rely on majorities and pluralities to make most decisions.

And I would say that the case against supermajorities is actually stronger than the case for them. See, for example, the bloodiest war in American history due in substantial part to the impossibility of establishing a supermajority to rid ourselves of slavery. I would say that supermajorities do more to lock in injustice than to provide it.
It's not snarky at all, I think it's a legit point. I don't know that supermajorities would improve things, but I do think reducing the power of these institutions would lower the stakes and be better overall.

Last edited by Bone; 10-11-2018 at 01:46 PM.
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Old 10-11-2018, 02:47 PM
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I don't think that it's a horrible idea. It has some aspects to recommend it. But I don't think it's the best answer, either.

Fundamentally, I'd say, there are two sorts of positions that the Supreme Court fills.

In the first, they are simply the highest court in the land - the final arbiter of all appeals. And for that purpose, the proposal makes sense. Here, we are principally concerned with maintaining precedent and apolitical, constitutionally safe answers.

But the second position is to serve as the continuation of the Constitutional Congress. Their job is to say, "If we got Madison, Hamilton, Elbridge Gerry, and Thomas Jefferson in a room to answer this question, what would they say?" And to be able to fill that role, you need to be an exceptional person, to have a deep knowledge of those people, John Locke, Thomas Paine, humanism, and other Enlightenment topics, and to feel empowered to be creative and answer with the authority of our founders.

I don't feel like you can achieve that second function using this strategy. You need something closer to the current model, just better.

Really, the problem is more fundamental. The government needs to have better standards of hiring and functioning than popularity contest. Solve that for Congress and the President and the Supreme Court will resolve itself.
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Old 10-11-2018, 02:53 PM
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Really, the problem is more fundamental. The government needs to have better standards of hiring and functioning than popularity contest. Solve that for Congress and the President and the Supreme Court will resolve itself.
This is very true. Any practical ideas to achieve this? (maybe too much of a hijack)
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Old 10-11-2018, 04:07 PM
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This is very true. Any practical ideas to achieve this? (maybe too much of a hijack)
Yes.

1) Form a non-partisan group to head-hunt and primary Presidential candidates (replacing the Electoral College).
2) Make senators be nominated and elected using bipartisan voting systems by all elected officials of the state.
3) Restore congress to non-tabulated, non-public, hand count votes.

Last edited by Sage Rat; 10-11-2018 at 04:11 PM.
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Old 10-11-2018, 07:36 PM
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I heard something proposed that would give each justice a term of nine years, with one justice being replaced yearly. This way the politicization of the court would be lessened. The direction of the court might change over the years, but then could right itself in another direction. With such relatively shorter terms the importance of the appointment of each justice would be lessened significantly. Sounded like an interesting idea.
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Old 10-11-2018, 08:07 PM
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I heard something proposed that would give each justice a term of nine years, with one justice being replaced yearly. This way the politicization of the court would be lessened. The direction of the court might change over the years, but then could right itself in another direction. With such relatively shorter terms the importance of the appointment of each justice would be lessened significantly. Sounded like an interesting idea.
At the moment, the court is getting more partisan not less. Rotating the justices faster just allows for the division to grow faster.
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Old 10-11-2018, 08:18 PM
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Seems like a lot of work to fix the wrong problem.

The two parties rules (primarily Republican) which block any intra-member coalition building and bipartisan action is the primary cause of this problem.

Simply not listening to Madison and the concerns around faction.
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Old 10-11-2018, 10:08 PM
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Originally Posted by Procrustus View Post
The staff would come with them from the Court of Appeals. The Cert. petitions could be reviewed while they're at the Court of Appeals. For example, Judge X is scheduled to sit on the Supreme Court May 1 through 14. The previous November he gets a stack of 45 petitions for review and votes with the other nine judges who are scheduled to hear arguments in May. Review is granted to 5 cases, and the nine judges who will hear the cases in May start getting ready. They hear arguments, have their case conference, and go home to write the opinions, that are issued by the end of June.

I'm not in favor of this approach, but the logistical problems can be addressed.

The continuity problem seems very troubling, without some very strong new rules on stare decisis.
So the two week period a Justice is sitting on the court requires six months of preparation beforehand and six weeks of catching up on the paperwork afterwards.

Who's going to be doing the work on the appellate cases while the judges for that level are all busy doing their Supreme Court work? It's not like they have a lot of spare time; the appellate courts are already heavily overloaded and backed up.
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Old 10-11-2018, 11:00 PM
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asahi asahi is offline
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We're wasting our time hypothesizing about an apolitical courts, particularly given the fact that the party currently in power wants courts to be politicized. As a society, the threads that tie democracy together are fraying. Politics underlies it all. A healthy citizenry that embraces democratic values is the cornerstone of a vibrant democratic system that represents the public interest. Unfortunately, much of the citizenry is either anti-democratic or just simply checked out or confused, or perhaps all three. American democracy is stalling, and we're nearing the point at which it's unrecoverable.
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