Supreme Court fixed schedule appointments

[Safiel]

I bring this up in light of the current Sonya Sotomayor thread.

For the Supreme Court, I would change to a system of fixed schedule appointments. Each President would get ONE and ONLY ONE Supreme Court appointment per term, two maximum if they serve two terms. End the bullshit of Presidents like Trump accumulating 3 appointments in a single term, while President Carter got zero and President Obama got two over eight full years. Each President would get the exact same amount of influence on the Supreme Court, per Presidential term. It would also make it impossible for Justices to influence the choice of their successors, since their retirement would not create a vacancy.

This can be accomplished by legislation. Constitutional amendments are unreachable pipe dreams, this is actually doable.

Note, this is not fully fleshed out, I have some further ideas that will eventually be incorporated.

The proposal is as follows:

1. There would no longer be a "fixed" Chief Justice, but the position of Chief Justice would rotate by seniority in exactly the same manner it does on all lower Article III Courts, except that the term for a Chief Justice would be reduced to 4 years. There would no longer be Associate Justices, all Justices would be appointed to office under the title of Justice.

2. The death, resignation, retirement or retirement in senior status of a Justice would NOT produce a vacancy on the Supreme Court. There would be no fixed seats on the Supreme Court.

3. One vacancy would open on the Supreme Court at noon on January 20th of every year following an election year.

4. The appointment scheme detailed above would result in 7 total appointments to the Supreme Court over every 28 year period.

5. Consequently, the Supreme Court's size would no longer be determinate, but would likely fluctuate between 5 and 9 Justices as Justices enter the court at fixed intervals but die, resign or retire at unknown intervals, with an average of 7 over the long haul.

6. Because the vacancies would occur at the beginning of a President's term, it would be politically untenable and probably impossible to block a President from making his desired appointments for 4 full years. As an emergency backstop, a provision would exist so that any unfilled vacancies would NOT continue over to the next Presidential term, so that a subsequent President will not benefit from the intransigence of a previous Senate.

7. An additional provision would end the current use of fixed Circuit Justices. Instead, emergency appeals would be assigned to Justices on a random round robin basis.

8. The proposal would take effect on January 20th, 2025. President Biden would have gotten 1 appointment under this bill, but he got that appointment anyway due to Breyer's retirement.

(OP continued to next post due to 5,000 word limit.)

 

[Safiel]

(continuation of OP)

The existing Chapter 1 of Title 28, United States Code reads:

§1. Number of justices; quorum

The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.

§2. Terms of court

The Supreme Court shall hold at the seat of government a term of court commencing on the first Monday in October of each year and may hold such adjourned or special terms as may be necessary.

§3. Vacancy in office of Chief Justice; disability

Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified.

§4. Precedence of associate justices

Associate justices shall have precedence according to the seniority of their commissions. Justices whose commissions bear the same date shall have precedence according to seniority in age.

§5. Salaries of justices

The Chief Justice and each associate justice shall each receive a salary at annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title.

§6. Records of former court of appeals

The records and proceedings of the court of appeals, appointed previous to the adoption of the Constitution, shall be kept until deposited with the National Archives of the United States in the office of the clerk of the Supreme Court, who shall furnish copies thereof to any person requiring and paying for them, in the manner provided by law for giving copies of the records and proceedings of the Supreme Court. Such copies shall have the same faith and credit as proceedings of the Supreme Court.

I would change it to read:

§1. Number of justices; quorum

The Supreme Court of the United States shall consist of an indeterminate number of Justices, any two-thirds of whom shall constitute a quorum.

Section 2 would remain the same.

§3. Vacancies on the Supreme Court

The death, resignation, retirement or retirement in senior status of a Justice shall not create a vacancy on the court. One vacancy in the office of Justice shall be created at noon Eastern Standard Time on the 20th day of January next succeeding each Presidential election year. However, if the President shall fail to successfully appoint an individual to a vacancy created under this section during the respective term of office, such vacancy shall expire at 11:59:59 am, Eastern Standard Time on the 20th day of January marking the end of such term of office and shall not carry over to the next Presidential term.

§4. Precedence of justices, rotation of service as Chief Justice

(a)(1) The Chief Justice of the Supreme Court shall be the Justice in regular active service who is senior in commission of those Justices who-

(text relating to rotation of Chief Justice position omitted for brevity)

§5. Salaries of justices

The Justices shall each receive a salary at annual rates determined under section 225 of the Federal Salary Act of 1967 (2 U.S.C. 351–361), as adjusted by section 461 of this title. The individual serving as Chief Justice at the time of the enactment of this legislation shall continue to receive the emoluments provided by law for the Chief Justice as if this legislation had not been enacted. However, no Justice serving as Chief Justice pursuant to this legislation shall receive any extra emoluments for such service, beyond the emoluments provided by law for Justices.

I would omit Section 6 as being obsolete.

Additionally 28 USC 42 would be repealed and replaced:

§42. Allotment of Supreme Court justices to circuits

The Chief Justice of the United States and the associate justices of the Supreme Court shall from time to time be allotted as circuit justices among the circuits by order of the Supreme Court. The Chief Justice may make such allotments in vacation.​

A justice may be assigned to more than one circuit, and two or more justices may be assigned to the same circuit.

would be replaced by:

§42. Emergency and interlocutory appeals

Emergency and interlocutory appeals shall be handled in random round robin rotation. The Clerk of the Supreme Court shall provide for a confidential randomized order of all current Justices and after every complete rotation, the order of Justices shall again be randomized, so that appellants can not be able to determine which Justice is next in line to hear an emergency or interlocutory appeal.

 

[Ishm]

I would prefer that politicians have no say in the Justices selection and that they are appointed by a large and bipartisan jury of their peers. It's not until you get outside the US that you realize how broken the system is when you can predict the outcome of a legal query by the politics of the president who appointed the most judges. There should also be regular reviews of a justices performance by a peer group, and term limits. Right now the judges are accountable to no one, and some happily behave like that's the case.

 

[Safiel]

I would prefer that politicians have no say in the Justices selection and that they are appointed by a large and bipartisan jury of their peers. It's not until you get outside the US that you realize how broken the system is when you can predict the outcome of a legal query by the politics of the president who appointed the most judges. There should also be regular reviews of a justices performance by a peer group, and term limits. Right now the judges are accountable to no one, and some happily behave like that's the case.

That would be nice, unfortunately, that is impossible without a Constitutional Amendment. My proposal is about as best we can do without a Constitutional Amendment, which simply is out of reach in the current political climate.

 

[Rich2018]

What if SC justices were to die/retire at a rate of more than 1 every 4 years ?

Would you need a minimum number of SC justices ?

Are you saying that every January, a new justice is appointed, regardless if there is a vacancy ?
In which case, would you have a maximum number of justices allowed ?

 

[OrphanSlug]

Unworkable, too difficult to control appointments and then retirements to a restriction like this. It would result in open seats.

 

[WorldWatcher]

My alternative, but one that would require a COTUS amendment, sure.

I think we can make the SCOTUS less political by changing the lifetime tenure provision. If Justices were required to rotate out of the court, then there is less possibility of a justice "hanging on" until they get the Presidential/Senate combination they feel more aligned with for political reasons. If vacancies were to occur on a more regular basis it would be a more routine process.

I'm not so much in favor of an upper age limit though as it will then become the ploy to just nominate younger and younger individuals to be on the SCOTUS so they can be there longer. I'm more in favor of limiting the number of years of SCOTUS service.

So...

^

Amend the US Constitution concerning SCOTUS tenure.

1. The senior Justice with 20 years of service on the SCOTUS will face mandatory retirement the year following a Presidential election cycle and each subsequent year which does not contain a Presidential election cycle on June 30th. This will include Chief and Associate Justices. If a new Justice has not been confirmed by October 1st of the same year, then the Chief Justice shall have the discretion of reactivating a retired Justice in accordance with paragraph #2. A Chief Justice cannot face mandatory retirement with less than five years in that role, however the next senior Associate Justice with a minimum of 20 years of service will then be required to retire. Only one Justice per year may be mandatorily retired. If two or more Justices qualify in any year, only the senior based on Supreme Court swearing in date is required to retire.

2. In the event of death, incapacity, voluntary retirement prior to 20 years of service or vacancy, the Chief Justice can provide for temporary reinstatement of a retired Supreme Court Justice for a non-renewable period of one year or one term, whichever is greater. Once the period has expired, there is no extension. In the event of death or incapacity of the Chief Justice, the senior Associate Justice becomes the Chief Justice pending Senate consent of a new nominee. Requests for reinstatement must be made in the reverse order of retirement with the most recent retiree being solicited first. If that individual declines the request, the next most recent retiree is solicited. In the event there are no retired Justices available or none accept reinstatement, the court will revert to rules pertaining to an even number of Justices. The reinstatement of a temporary Justice ends when the incapacity or vacancy ends.

3. The Senate is required to advise and consent on Presidential nominations to the Supreme Court, if vacancy has been created for any reason, after 120 days from the official date of nomination if there has not been a confirmation vote made available to a quorum of Senators in whole, then the nominee will be deemed consented to by the Senate and confirmed due to inaction.
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Just my thoughts, these and $5.00 will get you a coffee at a Starbucks.
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WW

 

[Perotista]

I bring this up in light of the current Sonya Sotomayor thread.

For the Supreme Court, I would change to a system of fixed schedule appointments. Each President would get ONE and ONLY ONE Supreme Court appointment per term, two maximum if they serve two terms. End the bullshit of Presidents like Trump accumulating 3 appointments in a single term, while President Carter got zero and President Obama got two over eight full years. Each President would get the exact same amount of influence on the Supreme Court, per Presidential term. It would also make it impossible for Justices to influence the choice of their successors, since their retirement would not create a vacancy.

This can be accomplished by legislation. Constitutional amendments are unreachable pipe dreams, this is actually doable.

Note, this is not fully fleshed out, I have some further ideas that will eventually be incorporated.

The proposal is as follows:

1. There would no longer be a "fixed" Chief Justice, but the position of Chief Justice would rotate by seniority in exactly the same manner it does on all lower Article III Courts, except that the term for a Chief Justice would be reduced to 4 years. There would no longer be Associate Justices, all Justices would be appointed to office under the title of Justice.

2. The death, resignation, retirement or retirement in senior status of a Justice would NOT produce a vacancy on the Supreme Court. There would be no fixed seats on the Supreme Court.

3. One vacancy would open on the Supreme Court at noon on January 20th of every year following an election year.

4. The appointment scheme detailed above would result in 7 total appointments to the Supreme Court over every 28 year period.

5. Consequently, the Supreme Court's size would no longer be determinate, but would likely fluctuate between 5 and 9 Justices as Justices enter the court at fixed intervals but die, resign or retire at unknown intervals, with an average of 7 over the long haul.

6. Because the vacancies would occur at the beginning of a President's term, it would be politically untenable and probably impossible to block a President from making his desired appointments for 4 full years. As an emergency backstop, a provision would exist so that any unfilled vacancies would NOT continue over to the next Presidential term, so that a subsequent President will not benefit from the intransigence of a previous Senate.

7. An additional provision would end the current use of fixed Circuit Justices. Instead, emergency appeals would be assigned to Justices on a random round robin basis.

8. The proposal would take effect on January 20th, 2025. President Biden would have gotten 1 appointment under this bill, but he got that appointment anyway due to Breyer's retirement.

(OP continued to next post due to 5,000 word limit.)

I wouldn’t go through all of that. I would make one change and that change would take the politics out of appointing SCOTUS justices. Make all appointments require 75% super majority for confirmation. That would eliminate appointing justices who only have the political view, the ideology of the president at the time. It would require support from both major parties in the senate. There would be no litmus tests. You wouldn’t have liberal or conservative justices. Any nomination of a judge viewed too conservative or too liberal would be doomed to failure. This is the only change I’d make.

 

[Rich2018]

Unworkable, too difficult to control appointments and then retirements to a restriction like this. It would result in open seats.

What America need is an a-political process of appointing judges.

 

[Safiel]

What if SC justices were to die/retire at a rate of more than 1 every 4 years ?

Would you need a minimum number of SC justices ?

Are you saying that every January, a new justice is appointed, regardless if there is a vacancy ?
In which case, would you have a maximum number of justices allowed ?

Only 1 Justice appointed every 4 years.

 

[Rich2018]

Only 1 Justice appointed every 4 years.

So in 28 years, we could have 16 SC justices ?

 

[Safiel]

So in 28 years, we could have 16 SC justices ?

28/4=7

Now if your counting the 9 we have now, implausible that Thomas, Roberts, Alito and Sotomayor would still be alive in 28 years. Unlikely Kagan would still be alive in 28 years. If Kavanaugh, Gorsuch and Jackson were still around, that would be 10, but most likely they would have retired in their 80's.

 

[Safiel]

I would also note that I would prefer a smaller average size. Most States have 7 Justices, rather than 9. Easier for 7 Justices to reach a consensus. And my proposal would likely result in an average number of Justices in the 7 range.

 

[WorldWatcher]

I would also note that I would prefer a smaller average size. Most States have 7 Justices, rather than 9. Easier for 7 Justices to reach a consensus. And my proposal would likely result in an average number of Justices in the 7 range.

I was actually wondering if it would make since to expand the court to 13, but sill limit case reviews to 9. With random assignment to cases.

WW
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Expansion to be non-political.

• One justice added per President. If someone serves two terms they only get to add 1 new Justice.
• First expansion seat nomination not to occur until after the current President leaves office.

W

 

[Mungo Jerry]

None of this is necessary - it works fine the way it is.
Liberals can't stand losing; when they do, the first thing they do is try to change the rules.

 

[Rich2018]

28/4=7

Plus the existing 9
9 + 7 = 16

Now if your counting the 9 we have now, implausible that Thomas, Roberts, Alito and Sotomayor would still be alive in 28 years. Unlikely Kagan would still be alive in 28 years. If Kavanaugh, Gorsuch and Jackson were still around, that would be 10, but most likely they would have retired in their 80's.

Irrelevant
Are you suggesting that only people with less that 28 years life left would be eligible to serve on the SC ?

 

[Safiel]

None of this is necessary - it works fine the way it is.
Liberals can't stand losing; when they do, the first thing they do is try to change the rules.

I am not a liberal.

Not even close.

In fact, in many ways, I am far closer to the jurisprudence of the conservative members of the court than to that of the liberal members.

But a conservative can see just as well as a liberal that the current system of selecting our judiciary has become abusive.

 

[Safiel]

Plus the existing 9
9 + 7 = 16



Irrelevant
Are you suggesting that only people with less that 28 years life left would be eligible to serve on the SC ?

Does it really matter? Your not going to see either Trump or Biden (regardless of winner) or any future President nominate a candidate who doesn't have a long lifespan ahead of them. Any nominated candidate can be expected to have at least 25 years ahead of them.

 

[mrjurrs]

That would be nice, unfortunately, that is impossible without a Constitutional Amendment. My proposal is about as best we can do without a Constitutional Amendment, which simply is out of reach in the current political climate.

I don't think that's true. There are a couple of ways to get to term limits without a Constitutional amendment. 1) Cg legally defines "...good behavior" or 2) Congress passes a plan that sets a term limit where the termed out Justice has the ability to return to the federal bench.

 

[Rich2018]

Does it really matter? Your not going to see either Trump or Biden (regardless of winner) or any future President nominate a candidate who doesn't have a long lifespan ahead of them. Any nominated candidate can be expected to have at least 25 years ahead of them.

So you wouldn't have a minimum or maximum number of SC justices ?

And if nominees have so much life ahead of them, would you not expect the number of said SC justices to rise far above the current 9 ?