Supreme Court Appointment Process

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Supreme Court Appointment Process

Post by davepullin on Sun Oct 23, 2011 6:59 am

Supreme Court judges are no longer impartial. They are political appointees. The president and his party appoint the most dependably biased person they can get away with. Judges time their resignations so as to bequeath "their seat" to their party.

The Supreme Court can undermine any other reform, and with the current make up are most likely to prevent any return of power from corporations to the people.

The appointment process must be reformed to prevent this abuse.

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Possible solutions

Post by davepullin on Sun Oct 23, 2011 7:25 am

I offer some ideas that would improve the process, not because they are necessarily the best ideas, but to demonstrate that the system can be improved.

1. If the presidential nomination and congressional ratification process is not otherwise changed, then the game playing that judges use to bequeath their seat to their party could be largely prevented by a rule such "An appointment is not made until both 2 years and a presidential election have past after the seat become vacant". This forces the party to surrender power for 2 years or more and to guess the outcome of the election at least 2 years in advance.

2. A better scheme would be a pool of Judges much larger than the 9 on the court. Judges could be selected by a random process to hear any given issue (as happens in many other judicial assignments). Resigning from the pool would merely make the pool a little smaller and have essentially no effect. The pool should be replenished by a more inclusive and less manipulable process.

For example, replenishment might happen only at some fixed time after an election. Replenishment would always be for a fixed number of seats (say 10). Each seat would be filled by a person nominated/sponsored by 10 senators (each senator being allowed to sponsor only one appointment). Thus the pool will be replenished in accordance with the breadth of views across the senate including the minority.

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Let the Legal Profession Choose

Post by Joe Steel on Sun Oct 23, 2011 9:42 am

davepullin wrote:Supreme Court judges...are political appointees.
You're correct. Candidates for the Supreme Court are nominated by the President, a politician, and are qualified to the bench by the Senate, 100 politicians. How can they be other than political?

One way around this would be direct election or, better, selection by the legal profession. Let the Deans of America's law schools form a selection committee to select Supreme Court justices. They would be expected to choose the best jurist available not merely the one with currently popular opinions. While we probably never will be able to remove all political considerations from the process, relying on legal professionals to make the selection would be better than trusting politicians to do it.

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Re: Supreme Court Appointment Process

Post by Alstein on Sun Oct 23, 2011 10:10 am

My suggestion should we ask for a consitutional amendment on this.

Supreme Court Justices are given 18-yr terms, with a term expiring every 2 years.

If a Justice is unable to finish his term, everyone's term gets extended to the end of the next term, and a new justice is selected, who will receive an 18-yr term. This way each president gets to appoint 2 supreme court justices.

I think this wouldn't take the politics out of it, but this will keep some of the silly stuff that is starting to happen from happening. I'm expecting some "Weekend at Bernie's" stuff in the future at the current rate.

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Re: Supreme Court Appointment Process

Post by Joe Steel on Sun Oct 23, 2011 12:03 pm

Alstein wrote:This way each president gets to appoint 2 supreme court justices.

I think this wouldn't take the politics out of it...
That's the problem. The application of law is no place for politics.

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Re: Supreme Court Appointment Process

Post by davepullin on Mon Oct 24, 2011 6:57 am

Alstein wrote:
If a Justice is unable to finish his term, everyone's term gets extended to the end of the next term, and a new justice is selected, who will receive an 18-yr term. This way each president gets to appoint 2 supreme court justices.

Mathematically, that doesn't work. If there are 9 judges and 1 resigns, there are now 8. No matter how you rearrange their term limit rules, there are still only 8. Either you live with 8 until the resigning judge would have been replaced anyway, or you appoint a new judge early, and therefore by a president who would not have appointed that the judge had the resigning judge not not resigned. Therefore the resignation successfully manipulated the appointment process.

Term limits works if you have a pool of judges, and are probably a good idea.

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Re: Supreme Court Appointment Process

Post by davepullin on Mon Oct 24, 2011 7:17 am

Joe Steel wrote:
davepullin wrote:Supreme Court judges...are political appointees.
... Let the Deans of America's law schools form a selection committee to select Supreme Court justices. They would be expected to choose the best jurist available not merely the one with currently popular opinions. While we probably never will be able to remove all political considerations from the process, relying on legal professionals to make the selection would be better than trusting politicians to do it.

If you put the power into the hands of someone, then they become the targets for lobbying and corruption. Inevitably they will be "bought".

When formulating a process, one should not create a process that pre-determines any more of the the answer than possible. If deans of law schools appoint supreme court judges, then supreme court judges will be lawyers - jurists, as you say - and probably a lot of them will be former deans of law schools. This will delight lawyers and deans of law schools, and strict constructionalists, while offending those that think lawyers already have too much power and that constructionalists are merely twisting words at the behest of beneficiaries of unjust historical accidents.

If we are not successful eliminating corruption from elected politicians, then it does not matter who is on the supreme court. If we do eliminate corruptibility from elected politicians then we should use them for what they are for -- representatives of the people who act in the best interests of the people. We should not create another body to be new targets of corruption.

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Re: Supreme Court Appointment Process

Post by Joe Steel on Mon Oct 24, 2011 7:32 am

davepullin wrote:If you put the power into the hands of someone, then they become the targets for lobbying and corruption. Inevitably they will be "bought".
The power has to be in someone's hands. There's no way to avoid lobbying but placing the selection in the hands of lawyers minimizes it by imposing a standard of professional ethics.

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Re: Supreme Court Appointment Process

Post by Joe Steel on Mon Oct 24, 2011 7:36 am

davepullin wrote:When formulating a process, one should not create a process that pre-determines any more of the the answer than possible. If deans of law schools appoint supreme court judges, then supreme court judges will be lawyers - jurists, as you say - and probably a lot of them will be former deans of law schools. This will delight lawyers and deans of law schools, and strict constructionalists, while offending those that think lawyers already have too much power and that constructionalists are merely twisting words at the behest of beneficiaries of unjust historical accidents.
As it is now, I don't think Supreme Court justices have to be lawyers but, as far as I know, all have been. Are you suggesting we should make an effort to select persons other than lawyers to the Supreme Court?

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Re: Supreme Court Appointment Process

Post by davepullin on Mon Oct 24, 2011 7:48 am

Joe Steel wrote:
As it is now, I don't think Supreme Court justices have to be lawyers but, as far as I know, all have been. Are you suggesting we should make an effort to select persons other than lawyers to the Supreme Court?

There have been cases where they have not been... Chief Justice Warren, I believe, - who was a Governor, appointed by a republican president (in a sleazy quid-pro-quo deal ), and is credited with many of the liberating decisions of his era. He was a perfect example of the presidential appointment process NOT creating a stooge for the president -- a mistake no president is likely to make again.

I think it is time to recognize the reality that the Supreme Court does not interpret the constitution. It is now the guardian of the rich and powerful. Instead it should be the guardian of justice and democracy - the guardian of the long term interests of the people, balancing the interests of the individual against the interests of the majority. A pre-determination that only lawyers can do that is wrong.

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Re: Supreme Court Appointment Process

Post by Joe Steel on Mon Oct 24, 2011 12:28 pm

davepullin wrote:I think it is time to recognize the reality that the Supreme Court does not interpret the constitution. It is now the guardian of the rich and powerful. Instead it should be the guardian of justice and democracy - the guardian of the long term interests of the people, balancing the interests of the individual against the interests of the majority. A pre-determination that only lawyers can do that is wrong.
I'm sympathetic to the principle of appointing wise persons to the Court. I think we have to be careful, though, that they don't misapply the law. We have a legislative process for creating law which allows for voicing every opinion no matter how small the voice speaking it. We can't have someone on the Court set-aside that process no matter how wise he or she might be.

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Re: Supreme Court Appointment Process

Post by davepullin on Tue Oct 25, 2011 10:17 am

Joe Steel wrote:I'm sympathetic to the principle of appointing wise persons to the Court. I think we have to be careful, though, that they don't misapply the law. We have a legislative process for creating law which allows for voicing every opinion no matter how small the voice speaking it. We can't have someone on the Court set-aside that process no matter how wise he or she might be.

Consider the following experiment. Take 9 very intelligent, very well educated persons and ask them to interpret documented laws in connection with a decision and each to reach a conclusion based solely on the law regardless of their personal preferences or anything else.

If, in large proportion of the cases, each reaches a conclusion that correlates perfectly with the preference of their polical party, they are NOT interpreting the law. They are using the law as cover to justify the decison while hiding the real reason.

That experiment has been done!

I would prefer they explain the real reason for the decision, and I'd like the reason to be based on wisdom in the interests of liberty and justice for all.

If there is a choice between an action that is wise, just and in the interests of all people, versus one that is unwise, unjust and against the interests of all people but conforms to the law, I would prefer they take the former rather than the latter.

The supreme court does override laws; I would prefer they do it for the right reason.

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Re: Supreme Court Appointment Process

Post by Joe Steel on Tue Oct 25, 2011 11:46 am

davepullin wrote:
Joe Steel wrote:If there is a choice between an action that is wise, just and in the interests of all people, versus one that is unwise, unjust and against the interests of all people but conforms to the law, I would prefer they take the former rather than the latter.

The supreme court does override laws; I would prefer they do it for the right reason.
Presumably, the law reflects justice as it has been determined to be by an elected legislature and a judiciary trained in the process of law. Allowing a few individuals to set aside that process to implement their own version of justice is an insult to our civil tradition. They must remain faithful to the law. That is the only standard of justice each of us can see.

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Re: Supreme Court Appointment Process

Post by davepullin on Tue Oct 25, 2011 4:04 pm

Joe Steel wrote:
Presumably, the law reflects justice as it has been determined to be by an elected legislature and a judiciary trained in the process of law. Allowing a few individuals to set aside that process to implement their own version of justice is an insult to our civil tradition. They must remain faithful to the law. That is the only standard of justice each of us can see.

Suppose, for the sake of argument, we disagree on how wise men should execute their wisdom, and return to the topic of how they should be appointed. I have 2 questions.

1. How do you see the appointment process constraining or controlling the operation of the appointees?

2. Why do you feel that the appointment process should be pre-disposed to your way of them operating, rather than my of them operating? (This is question about the principles of democracy. If the "rules" of democracy put some people's choices ahead of others, is it really democracy?)

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