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Supreme Court Membership
There has been great contention over nominations to the Supreme Court. President Franklin D. Roosevelt attempted to add more members to the court in order to gain a majority. That effort was rejected, but not resolved. This issue gained additional attention in 2016 when the Senate Majority leader refused to consider a nomination by President Obama. Only four years late they completely reversed their behavior for a Republican nominee. The Senate has changed the nomination rules such that they could approve nominations with only 51 votes rather than a required 60. The Republicans of the Senate have indeed packed the court. This affected not only Supreme Court nominations but also those of federal judges and cabinet secretaries. This has not been good for this country.
The conclusion is that that the status of the Supreme Court should be solidified with a constitutional amendment.
There are multiple considerations that must be invoked. The first is that a lifetime appointment is not good for this country.[1] Some presidents may not have the opportunity to appoint any judges, while others may make multiple appointments. This needs to change. The tenure of Supreme Court Justices must be weighed along with stability and fairness. So must the number of judges in the court.
A reasonable starting point is that one position is to be opened every two years. Two times nine provides for an 18 year appointment, more than sufficiently long. However, this raises a significant problem. A single president serving two terms would appoint four justices, almost half the court. That is too many.
A change to eleven justices makes more sense. With an appointment every two years, eleven justices yield a tenure of 22 years and thirteen yields a tenure of 26 years. The current average tenure is 25.5 years.[2]
With eleven justices and an appointment cycle of two years, a two-term president will appoint four out of eleven justices for 36.3 percent of the court. More than one third of the court. With thirteen justices the numbers change to four out of thirteen for 30.7 percent. Not a big difference. For this reason, the thirteen eleven is selected.
This discussion must consider recent politics, and in particular the behavior of the Republican party of denying an appointment by a Democratic president then, four years later, providing almost exactly the same opportunity to a Republican president. This behavior is hypocritical in the extreme.
The process of each president having an appointment every two years would eliminate this problem. When the appointment is in the first and third year of the presidential term, the Senate would be obligated to consider the president’s appointment.
An additional concept here is that the President is to have the explicit authority to keep the Senate in session, for the exclusive purpose of considering a nomination, until a judge, indeed, any appointment, has been approved. This means that Senators are not allowed the leave the Washington DC area while the consideration is in process. But let’s add something: Any member of congress who does depart, without presidential approval, is summarily excused from deliberations until the current proceedings are complete. This would dramatically reduce stonewalling and obstructionism.
It is worth nothing that the president already has authority to convene either or both houses of Congress. But, strictly speaking, the Senate is not obligate to do anything in particular.
The Constitution does not specify eligibility requirements for the Supreme Court. The president can nominate essentially anyone. The eligibility requirement should be spelled out in the Constitution.
Here is the Constitutional amendment suggestion:
The number of Supreme Court justices is set to thirteen. The tenure of a justice shall be twenty-six years. The tenure of the longest serving justice shall be set to twenty-six years after their initial appointment to the court. The remaining justices shall have their tenures set so as to end in two-year intervals. The tenure of each justice shall begin on the first working day May of the year of appointment and shall end on the last working day of April, twenty-two years afterwards. In the event that a nominee has not been confirmed by the expected date the position is not filled until a replacement has been selected.[3]
The processes of adding additional justices, to reach the limit of thirteen, is to provide each person elected to Presidency the opportunity to add one new Justice. A two-term president is provided one additional appointment towards the maximum count. The nomination may be made at any time during the president’s tenure. These new additions to the court may have a tenure longer or shorter that the standard twenty-two years in order to set a tenure of twenty-two years.
In the event that the number of justices is an even number, and in the event that the court is evenly divided on a decision, the Chief Justice shall cast the deciding vote.
With eleven Justice positions, each position is numbered from one to thirteen. The even numbered justice positions, two through twelve, shall be filled by women while odd numbered justice positions one to eleven shall be filled by men. The president has the option for position thirteen. The President is required to nominate an appropriate number of minorities to the Supreme Court but exact ratios are not specified. If a nominee moves the court away from an equitable minority representation the Senate may impose a category requirement upon the nomination. [4]
The sitting president shall appoint one Justice every two years, in the first and third year of the presidency. When a Justice departs the court for any reason other than their tenure expiring, the president shall appoint a new Justice to serve the remainder of the term of the departing justice subject to approval by the Senate.
The Senate must honor the President’s nomination for the Supreme Court, and for all presidential appointments, and provide full consideration. The President is authorized to keep the Senate in session for the exclusive purpose of considering all presidential appointments until a nomination is approved or rejected. The President must officially notify the Senate majority leader of this decision. When required by the President, no Senator is allowed to depart the immediate region of Congress while an appointment is being Considered. The President may provide exceptions for individuals. Any Senator that departs the area without a valid justification, approved by the President, shall be suspended from all Senatorial duties until the current nomination process has approved a candidate.[5]
The Presidential appointee must be approved by double majority of the Senate. A double majority is defined as a majority of the Senate Majority Party, and by a majority of the Senate Minority Party. In the event that the Senate is composed of three or more political parties, a simple majority of the combined Minority parties is required to meet the double majority requirement.
Supreme Court Justices shall select the Chief Justice each year in secret ballot.[6] Selection of the Chief Justice shall be the first order of business when convening for the first time in a new year and shall take precedence over all other business.
When possible, the Chief Justice is required to have a minimum of eight years of experience as a member of the Supreme Court.
In the event of Impeachment, the members of the Supreme Court shall select one of their members to preside over the Impeachment Trial.[7] The selected Justice shall assume full authority and responsibility for the conduct of the trial. With respect to all impeachment trials, all Senators shall relinquish all their authority as Senators for the entire duration of the trial, and shall serve only as members of the impeachment jury. Senators shall have the right to question all participants in the trial, subject to approval by the presiding Justice.
An impeachment and trial after the office holder has vacated the office is valid.
Senators who have displayed an obvious bias in an impeachment trial shall, on request of the presiding Justice, or by request of the majority of either the majority or the minority part, be evaluated by the members of the Supreme Court. The Supreme Court shall have the authority to remove those members from the current trial.[8]
All Supreme Court Justices are required to have been a U.S. Citizen for a minimum of twenty years, must have graduated from an accredited United States Law school, have passed the bar exam in at least one state, and must have served a minimum of seven years as a federal judge in the United States. [9]
This is not yet a valid suggestion and needs significant additional thought. Although with the above in consideration, it might be less needed than the current situation.
Is there any method by which a faulty SCOTUS decision can be overturned? SCOTUS is not perfect, and should not be considered perfect. However, implementing an overturn function is fraught with difficulties. What if one party has control of congress and does pass a law that is unconstitutional. Should Congress be allowed to overturn SCOTUS. Would requiring a double majority and a presidential signature be sufficient to prevent abuse of said overturn authority? Should there be a requirement for approval by some number or percentage of the Courts of Appeal?
[1] https://www.americanprogress.org/issues/courts/reports/2020/08/03/488518/need-supreme-court-term-limits/
[3] Making the position vacant rather than allowing the incumbent to remain in place is expected to reduce the tendency of the Senate to stall for the purpose of keeping that incumbent on the court.
[4] “…may…. Is the operative word.
[5] A requirement such as this must have a means of enforcement.
[6] To introduce a new member to the court, and to place then at the head of the court, is unreasonable. The Justices themselves are better aware of who should be their lead. This is the most fundamental tenant of democracy.
[7] This recognizes the possibility that the Chief Justice may have a possible conflict of interest, or for any reason, as determined by the Justices, might not be the best person to preside.
[8] The Constitution states: And no Person shall be convicted without the Concurrence of two thirds of the Members present. The operative word is: present.
[9] https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges
This site indicates that the average age at initial appointment is, for the last several decades, 50 to 55. A twenty-two-year appointment indicates an average retirement age of 72 to 77.