The
current furor over the approval of President Trump’s nominee to the Supreme
Court got me thinking. . .
The Constitution requires that all
federal judges—including the Supreme Court—are nominated by the President,
approved by the Senate, and get what are, in effect, lifetime
appointments. The concern today and at
other times over the years has been to ensure that judges are not appointed
based on short-term political considerations but for their legal wisdom and
judgment. Today, we are seeing that, in
a time when our politics are polarized, avoiding political considerations is
harder than ever.
I would argue that we might want to
reconsider the Constitutional requirements for nomination and approval. When the Constitution was written, there were
very few federal judges. Today, however,
there 870 federal judges, including 673 district judges, 179 appeals judges, 9
international trade judges and, of course, 9 Supreme Course judges. All of these judges have been nominated by a
President and approved by the U.S. Senate and serve lifelong appointments.
One way to minimize the
politicization of the courts would be to change the selection process for new
judges. Here’s an option: When a Supreme Court vacancy opens, the
current roster of federal judges would recommend to the President a list of five nominees. The President
would then select one of the recommended candidates to forward to the Senate
and another two to be considered if the first candidate withdraws or is not
approved. The Senate would then either
confirm the candidate or send the nomination back to the President.
Obviously, this does not totally
eliminate political considerations, since all judges will have already gone
through the process of presidential nomination themselves and since the
President would continue to be the nominator.
However, it would perhaps provide a buffer against pure politics as a
determiner of nomination decisions.
Thoughts??
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