Forum: What's the Matter With the Supreme Court?
https://www.thenation.com/article/forum-whats-the-matter-with-the-supreme-court/[An article 4 months old but with excellent ideas]
Mandate Diversity
Sanford Levinson
The first piece of business would be to eliminate life tenure for members of the Supreme Court. This could be done through age limits. Almost every state imposes such restrictions on judges in their own courts, as do almost all other national constitutions in the world. But the best solution, already supported by many, would be nonrenewable 18-year terms, which would eliminate the ability of justices to time their resignations for political purposes.
A convention might also raise questions about the appointment process itself. The United States has, without a doubt, the most deeply politicized high court in the world. This was inevitable once the two-party system developed and presidents realized that friendly judges were important to achieving their political goals. At the state level, most judges are elected, a practice that began with the 1846 New York State constitution in an effort to strengthen judicial independence by limiting the power of the governor to appoint his confederates. But there are obvious problems with elected judiciaries, especially in an era of deregulated campaign finance. Instead, many states have moved to forms of “commission” appointment. New Jersey operates under an informal rule that only four of its seven justices can come from a single political party (though Chris Christie tried to violate it). The new Democratic governor, Phil Murphy, recently reappointed one of Christie’s unsuccessful nominees when a “Republican seat” became open. Enshrining such a requirement in the Constitution itself could work to defuse tensions at the national level as well.
Finally, we should require a greater diversity of judges. Justice Oliver Wendell Holmes Jr. famously wrote that the life of the law “is not logic” but, rather, “experience.” We should be concerned that the current experience of all of the justices is so remarkably narrow. Every single member of the current Court attended either the Harvard or Yale Law Schools (though Justice Ginsburg wound up receiving her degree from Columbia). There is also a distinct East Coast tilt, with three members originally from New York City alone. This is a stunningly large country, with different problems arising in different areas. Anyone who lives in the West is likely to be aware of the vital problems raised by water and its potential scarcity. But of the current justices only Neil Gorsuch and Stephen Breyer were born west of the Mississippi. The Tennessee Constitution requires that its nine justices be chosen equally from the three parts of the state. Wisdom is not concentrated in one region, as a truly representative Supreme Court would reflect.
Incredibly, the present Court is also absent of anyone who has ever run for, let alone held, elective office. Nor is there any justice who ever served on a state court. None since Thurgood Marshall has had the experience of visiting a client in jail, possibly facing a capital murder trial. The Belgian constitution requires that several of its members must have served in the national parliament. There is no reason our Constitution shouldn’t be rewritten to include similar stipulations.
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... however the current process of Presidential appointment (with Senate approval) leaves a lot to be desired. The RWNJs have used everything at their disposal to game the system, so we can assume they would do the same if the justices were to be elected rather than appointed. The subject of mandatory retirement age is something the rightwingers refused to discuss as long as Justice Scalia was alive. But now he's gone so they're all salivating at the idea of forcing RBG out because of her age.
Why can't we ask the justices to take a mental acuity test every couple of years? As long as they can pass the test they keep their seat on the bench. If they can't pass it, maybe it's time to retire. Every state requires people to pass tests to get their drivers license, including a basic vision test. In order to be licensed to practice medicine, law, accounting, and many other professional fields, people pass rigorous examinations. Professional men and women are expected to maintain standards and refresh their knowledge throughout their careers. I don't understand why we give the SCOTUS justices a life-time pass on that.
