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.*
:dubious:
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.