Tags: supreme court | gorsuch | senate | committee of states | partisan bias

Committee of States Should Choose Supreme Court Justices, Not President

Committee of States Should Choose Supreme Court Justices, Not President
President Donald Trump points to U.S. Supreme Court Associate Justice Neil Gorsuch during a ceremony in the Rose Garden at the White House April 10, 2017, in Washington, D.C. (Eric Thayer/Getty Images)

Tuesday, 11 April 2017 09:56 AM Current | Bio | Archive

The highly qualified Neil Gorsuch has finally filled the vacancy created by Justice Antonin Scalia's death. But the unseemly process by which he became Justice Gorsuch suggests the time has come to reform appointment procedures.

The sad story began during the Obama administration, with Senate Republicans refusing the highly qualified Merrick Garland even the courtesy of being voted down. We should, they said, await the upcoming vote "of the American people."

When the American people voted, three million more of them supported the Democratic candidate, but Donald Trump prevailed in the Electoral College. Any message these mixed signals sent about the Supreme Court was unclear.

Even so, the election may have been swung by public opinion about the Supreme Court. The otherwise inexplicable support for Donald Trump by evangelical Christians probably reflected his promise to appoint justices who might overturn Roe v. Wade.

The second chapter of this story was written when Senate Democrats, understandably sore over the treatment of Merrick Garland, filibustered the appointment of Neil Gorsuch.  Lacking the 60 votes needed to break the filibuster, Republicans changed Senate rules so that appointments to the Supreme Court could not be filibustered. Democrats, who objected to this rule change, were reminded that they themselves had abolished the filibuster for lower courts and for administrative appointments a few years ago.

Once again we are reminded of what I modestly call "deLespinasse's Law": "In politics, people often invoke principles in a highly unprincipled way." That is, they invoke a principle like the sacredness of the filibuster when it leads to results they like, but attack it when it produces consequences they don't like.

Recent confirmation battles wouldn't have happened were it not that the Supreme Court has recently been splitting along conservative-liberal lines all too often. It is getting hard to believe it is holding the facts of cases up against the rules (the Constitution, legislation, and precedent) and deciding as the rules require, no matter whether the justices like the results as a matter of policy or not. Instead, the justices often seem to determine what policies they like and then rationalize their decision using whatever constitutional arguments are plausible.

In a democracy, policy making by people holding office for life cannot be regarded as legitimate. But recent proposals to fix this problem by appointing Supreme Court members for limited terms rather than for life are not well-conceived. This would only ratify and reinforce the idea that the Court is a policy making body. And increasing the frequency of appointments would increase opportunities for partisan fights.

We need instead to undermine the partisan nature of the Supreme Court by removing appointments from the political branches, freeing the Court to once again become a court of law rather than a third house of Congress.

Here is one way to do this: amend the Constitution so that Supreme Court vacancies are filled by a committee consisting of the chief justices of all 50 states. With neither the president nor the Senate involved in filling Supreme Court vacancies, appointments no longer could be a major issue in presidential or congressional elections. Future voters could concentrate on the policy ideas and the presidential temperament, or lack thereof, of the candidates.

This amendment would rebalance state and federal power. A federal system inevitably generates disputes about which decisions can be made centrally and which by the states. A federal body must adjudicate such disputes since to resolve them at the state level would mean that for practical purposes we have no federal government at all. The Supreme Court would continue doing this job, but it might be more inclined to protect legitimate state interests.

Constitutional amendments take time, so for now Donald Trump will appoint, with confirmation by the Senate. This means that appointees will at least appear to be conservatives. (Sometimes, there are surprises.) Liberals who have applauded the Court when it usurped the functions of the political branches will be in a weak position to object. They that lived by judicial policy making must be prepared to die by it.

Congress probably won't propose any such amendment, since whichever party controls the Senate would lose some advantage. It would probably require the alternate route provided by the Constitution, proposal by a convention convened at the request of the states, followed by the usual ratification by the states.

Does anyone have a better idea about how to remove Supreme Court appointments from partisan politics?

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his PhD from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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Amend the Constitution so that Supreme Court vacancies are filled by a committee consisting of the chief justices of all 50 states.
supreme court, gorsuch, senate, committee of states, partisan bias
Tuesday, 11 April 2017 09:56 AM
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