Mitch McConnell broke with tradition when he denied President Obama his pick to replace Antonin Scalia with Merrick Garland. It was high hypocrisy to replace RBG with Amy Coney Barrett after firmly, and repeatedly, vowing to never confirm a Supreme Court Justice in a Presidential Election year. This was extremely unfair but well within Republicans’ rights to do both. They controlled the Senate. It may have been a naked power grab on their part, but they broke no laws, violated no Senate rules.
What can be done?
“Expand the Court to 11 Justices” has been bandied about in the news media as a solution for Democrats. That would be a purely political move. Nothing wrong with that. It is what the Republicans did. In the last election the Republicans called that idea ‘packing the Court’ and used it as a cudgel to beat the predicted Democratic tsunami into a ripple.
Besides the divisiveness of the idea, there is a problem with ‘expanding the Court to 11’. Republicans will do the same the next time they are in power. Then the Democrats, then the Republicans. In a decade or so there will be 121 Justices, only serving to further degrade the Court’s stature in America as an independent, non-partisan voice. Eventually, no one will trust the Court’s judgement in matters of Constitutionality. If we expand the Court to eleven, we kill the effectiveness of another institution of democracy.
We could go the other direction and reduce the court to 7. The two longest serving members, Thomas and Alito, would be required to retire. However, with political divisiveness still in play, tit-for-tat will follow. The number of justices will go up and down like a seesaw. The Supreme Court, as a trusted institution, still bites the dust.
Reform the Federal Justice System
Our current situation was produced, in part, by a Supreme Court Justice (RBG) dying in office. A Republican Senate denied hundreds of lifetime judicial appointments to Democratic President Obama and confirmed hundreds under Trump… because they could. In the Georgia run-off election in January if either Republican is elected, hundreds of lifetime judicial appointments will again be denied, this time to President Biden.
The problem here is that federal judges are appointed for life. They have no retirement age or date. They only leave office when they die or choose to retire. Filling vacancies, then, becomes serendipitous, whimsical with no sense of urgency or purpose beyond winning. If we change this one thing, it will not only solve the problem at hand, but reduce the incessant squabbling between the President and the Senate over judicial appointments because it will happen with regularity and without fail.
How it works
Each President of the United States will fill 1 Supreme Court seat and 172 other federal judgeships without fail. One federal judgeship will be eliminated (there are 861 other federal judgeships). The longest serving Justice will retire as will the longest serving 20% of Federal judges. That translates to a complete turnover of the Supreme Court every 36 years (every 20 years for other federal judges). It will be mandated by legislation that all retiring judgeships be filled during each presidential term without fail. Deaths and voluntary retirements will continue to be handled as they are now.
The President will nominate 3 candidates for the Supreme Court. The Senate, through hearings, will confirm one by Independence Day. This process is to take place at the beginning of the second year of each term of each president. Other federal judge appointments will take place over the course of the term but be confirmed by the end of that term.
In practice, then, in January 2022, President Biden would nominate 3 candidates for the Supreme Court. The Senate, through hearings, would confirm one by the 4th of July. Thomas, the longest serving Justice, would retire. This returns to the balance on the Court prior to Gorsuch and Barrett. Biden must get re-elected or succeeded by a Democrat to change the balance of the court. What could be farer?
This is not a political move. It allows each President, regardless of party, to appoint a Supreme Court Justice and have them confirmed regardless of the political balance in the Senate. Since it is mandated to happen without fail, it will eliminate delays and Senate technicalities. Since it happens every 4 years, it will become the regular work of the Senate further reducing the friction over the process. Since 20% of the judicial appointments happen without fail every 4 years, there is no drive to dominate the courts for decades to come.
This all becomes possible if Democrats secure both Georgia Senators and then, kill the filibuster.