Rommie wrote:So, TSC, lots of people are unhappy about this believe it or not. The question is, as always, how do you go about changing it? A new
courthouse packing plan?
No that compounds the problem since it doesn't actually fix the underlying issue. Courthouse packing is an attempt to gain political advantage in a politicized judiciary. When the problem is that the judiciary is politicized in the first place, that solves nothing.
The solution, as I see it, requires a few things to be done:
1) The appointments process needs to be burned to the ground and built up from first principles. Get the politicians out of it, since they appear to be unable to handle the responsibility like adults. Create some sort of non-partisan, arms-length, third party commission to draw up a short-list of nominees whenever there's a vacancy on the bench. Then you give that list to the president, and
require that he or she pick from it. No one else can be appointed.
Now, normally I'd say you select judges and jurists to sit on the commission, but the system if so fucked at lower levels that I don't see that working, either. Maybe the ABA can do it. Maybe you find a bunch of the most respected (non-partisan) legal minds in the country and throw them in there. Christ, at this point, calling together a jury to make the decision is better than what you've got going on right now.
Point is, you stack the thing with people that the public can take seriously and who are seen not to be playing politics with the recommendations process. You run that show long enough, the institution gains political legitimacy and it becomes impolitic to either appoint political hacks or to ignore the commission entirely.
That's the biggest lesson I've learned from how the Canadian Supreme Court operates - legitimacy in the eyes of the public is profoundly necessary. They're always on guard to ensure their legitimacy is never questioned, which allows them to remain apolitical. That ship has sailed for the SCOTUS, which is why a new body needs to be created. It doesn't have the same baggage, so it has a chance at remaining apolitical and dragging the SCOTUS in the same direction.
2) The SCOTUS, as it currently operates, is not actually a supreme court. It operates as a
de facto constitutional court. Meaning that it only really rules on constitutional issues, rather than being a court of final appeal in all areas of law. This is a problem. Constitutional issues are the ones most often entangled with politics. Since the court only ever rules on them, it only ever rules on politically-charged issues. This is not a recipe for an apolitical court, since the culture surrounding the US legal system means that all such decisions are viewed through a political lens. If the court were instead to operate as an actual supreme court, it would be seen to rule on apolitical cases. Which means not only that it would be able to rule apolitically,
it would be seen to rule apolitically. The latter is important, as it changes attitudes towards the court, changes US legal culture, and (potentially) changes who gets nominated.
If you stop acting like the court only does politics, maybe it
actually gets to stop doing politics. Public attitudes matter.
3) Speaking of, the media needs to stop reporting on SCOTUS rulings like a political horse race. It only makes things worse by entrenching the notion that the court is doing politics. Worse, it means that politicians see media advantage when they treat the court the same way. Make them stop (good luck with that). It may be that this follows from a broader change in the culture, but the media is going to make that broader change harder the entire time you're trying to do it.
4) I mentioned that the lower courts were also fucked. Easiest solution? Stop electing judges. That's insane. You want a perfect recipe for politicizing a court, make your judges run for office on political platforms. Not only does that
require potential judges to take political positions (and
be seen to take political positions), it requires that they
carry out campaign promises while on the bench. Madness. Not only does that necessarily mean a politicized bench, it also means fundamental partisan disagreements between judges elected to the same court
and it means that every judge serves two masters - the law and his or her constituents. Not only does that politicize things, it fundamentally perverts the legal process.
So cut it out.
Anyway, what it all boils down to is entirely changing the legal culture in your country. Knocking it down to its foundations, and building it back up properly. Because it's been fucked for centuries. Right from the Revolution, I'd argue.
Which means it will never be fixed. Sorry, guys.
