Reforming the Supreme Court: Can it be Done?

July 27, 2012

By Dena Leichnitz

The U.S. Constitution, wise in its framing and its understanding of absolute power, seemed to drop the ball when it came to the judiciary. The reasoning for lifetime appointments has to be some of the most asinine reasoning ever spewed. Under some misguided notion that judges are above the pettiness that infects the rest of the human population, they should be given lifetime appointments as to not be persuaded by politics and with job security intact they would reach fair and unbiased decisions. If it hadn’t had such devastating effects, the above characterizations would be laughable.

Instead what we got was a group of corrupt people whom we can never get rid of.  So can we reform the Supreme Court? Can we bring back true impartiality, which was the point of the lifetime appointments to begin with, and begin to undo the damage that has been done? There are no easy answers, however there are possible solutions when it comes to selecting those who will sit on the highest court in the land. The Constitutionality of the ideas are sound. Except for imposing term limits which would require a constitutional amendment to be passed and ratified, most of it could be down within the current confines of the Constitution.

These ideas are not my own and are nothing new. They have been around for quite some time but they are at least doable and should be seriously be considered.

1) Have the  President select a nominee, have the person appear on an general election ballot and if that person passes the election process, their name is sent to the Senate for confirmation.  It could either be a simple majority vote or a two-thirds for either the voting public or the Senate or both.

2) Have the president select multiple nominees, I would say no more than 3 because then it would become a circus, and have the voting public select the best one.  The one with the highest percentage of votes becomes the nominee and their name gets sent to the Senate for confirmation.

3) Have the president select the nominee and have them be confirmed in the Senate. However, if they are unable to get 60 votes for confirmation, the vote is then put to the voting public.

There you have it. You have three ways in which the voting electorate could make their voice heard while still upholding the Constitution. The most problematic would probably be #2 because you would have different candidates so it would be no different than the elections for Congress and the President and of course, each person pandering to the fringe groups to secure their votes. With one and three you are basically voting yes or no, so there is no need for the rampant pandering as you would get with multiple candidates. However, with multiple candidates you get to choose whom you think would be best to sit in SCOTUS.

By making SCOTUS accountable to the people in some way, it no longer has the feel that these nine people are above the law.  Number three is probably the most doable because it does not interrupt the process but adds a contigency that allows the people to take part in one of the most important elections-that of a s Supreme Court justice. In all other elections, we can always vote the person out if we feel they are not serving our best interests. Not so with the Supreme Court justice and yet their rulings will have a major impact on us all.

While the naive but noble notion tha t the SCOTUS was about such unholy practices, like being influenced by public opinon, the results have not bared that out.  “The opinions were issued in the Court’s customary language of legal certainty-announced as if the Constitutional text and precedents alone mandated their conclusions-but conclusions in these cases probably would have been the same if they had simply been put up for a popular vote.” [Tobin, Jeffrey, "The Nine: Inside the Secret World of the Supreme Court. New York: First Anchors Books. September 2008] “These cases” are in reference to the Rehnquist Court from 1992-2005.

Of course, the election of Supreme Court justices is not the only thing that needs to be addressed. While getting rid of them should not be too easy, the difficulty of removing a judge should not be so arduous as to be thought to be impossible.  What is the answer? To this question, I have no readily available solution, but it does have to be changed. While the Constitution clearly states the judges shall hold office “during good Behavior” it is anyone’s guess what denotes good behavior. So while in the past, it has been almost impossible to remove a judge, even those who reside in the inferior courts, that does not mean we have to remain forever shackled to justices who clearly are legislating from the bench instead of interpreting the law.

There is so much that needs to be done, in order to bring the dignity back to the Court. Can it be done? I think it can but it is going to be a long road and no one is going to be exempt from the damage that will occur if it does not.

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