WASHINGTON, D.C. – Leading constitutional scholars today released a legislative proposal that would depoliticize and regularize the U.S. Supreme Court confirmation process by creating a procedure for biennial appointments to the nation’s highest court.
The proposal, which incorporates ideas from both conservative and liberal practitioners, would allow each president to nominate a justice in the first and third years of his or her term. The change would apply to future justices and would provide that justices who have served for 18 years be replaced by a new appointee. After their term, the justices would continue as fully compensated senior justices able to fill in on the high court following the death, retirement or removal of a justice and they could sit on lower federal courts, as several retired justices have done.
Similarly, should a justice recuse himself in a case of exceptional importance – think Bush v. Gore with an eight-member court – the Court could request the most recently retired senior justice to participate.
“Politics has infected the Supreme Court confirmation process. Everyone knows it. Denying it is pointless, and so is blaming one another for starting it,” states the letter introducing the legislation, which was sent today to the Chair and Ranking Members of the House and Senate Judiciary Committees.
“The American people do not care who created this problem or how it began,” the letter continues. “They want their elected representatives to fix it.”
To date, 21 law professors signed on to the proposal, titled “The Regularization of Supreme Court Appointments,” and citizens interested in showing their support may go to TinyURL.com/TermLimitsPetition to send a letter urging their members of Congress to support this proposal.
While similar legislation has been proposed in the past, the Supreme Court nomination and confirmation process in the last year has created a groundswell of support for prospective solutions.
American Constitution Society President Caroline Fredrickson, Associate Dean Alan Morrison of GW Law, Prof. (Emeritus) Paul Carrington of Duke Law and Fix the Court Executive Director Gabe Roth re-opened discussions last September to devise strategies for ending the over-politicization of the confirmation process. In the months since then, they have worked with legal scholars from across the country to draft the measure released today.
“Given the Constitution’s dearth of directives on the confirmation process, this proposal gives the Senate guidance on how to handle unexpected vacancies and makes the process more routine and less overwrought,” Associate Dean Morrison said.
“The Supreme Court’s political prominence has been steadily growing in recent years, and our proposal would return the institution to its designated place within the constitutional order,” Prof. Carrington said.
“Standardizing the confirmation process for Supreme Court nominees curtails the ability of justices to time their retirement to when a someone with a similar ideology sits in the White House,” Fredrickson said.
“Justices today are serving longer than ever, and this proposal would end the kind of interminable tenure that all but guarantees some jurists in every generation will succumb to mental decline while on the bench,” Roth said.
The proposal also answers several other institutional concerns, such as what would happen should a vacancy occur in year two or four of a president’s term. Under this plan, the process of filling a year-two vacancy would supersede a president’s year-three appointment. If there is a third vacancy during a president’s term, the president may make a nomination, but the Senate can then choose to ignore it – and if they do, a retired justice may be pulled back into service.
Finally, if the chief justice’s seat becomes vacant and if the president nominates a sitting justice to fill that role – that nomination would not count toward the two-justices-per-term rubric.
The drafters of the proposal acknowledge that it is by no means perfect in all its details, but the basic concept of a regularized appointment process is one, they believe, that all who care about the court and its place in our system of government should support.