The Way Forward on Supreme Court Appointments — HydraText

Christian Turner, a Georgia law professor @christor proposes a constitutional amendment - the 28th to address the illegitimacy of our Supreme Court.  Turner's proposal for an eighteen justice court serving eighteen year terms is an interesting contribution to the debate. 

The obstruction of the Merrick Garland nomination by Mitch McConnell, et alii, has highlighted the essential arbitrariness of the Supreme Court appointment process.  That is aggravated by the heightened awareness of the non-majoritarian features of our Constitution.  We are governed by a man who lost the popular vote but won the electoral.  The Senate is dominated by a party that dominates rural states which have power grossly disproportionate to their share of the population and do not reflect the character of the population as a whole.
Turner's proposal is a valuable contribution to the discussion. - gwc

The Way Forward on Supreme Court Appointments — HydraText

by Christian Turner (University of Georgia School of Law)

To do better, we need a neutral plan that makes control of the Court turn on future elections and that contains a transition rule acceptable to both sides. That’s why I’ve proposed a 28th Amendment, the text of which you can read here. Solving this problem has three critical components: (a) a workable institutional structure, (b) a reliable appointment procedure, and (c) a clear and acceptable transition procedure. I intend with this amendment to provide all three.

Here are the key institutional features:

• The Court will have 18 justices.
• Each justice serves an 18-year term and then becomes available to sit by designation on lower courts or to do other work within the judiciary. So life tenure in the judiciary is preserved, but a life-long seat on the Court is not.
• A justice departing early is replaced by the usual appointment procedure but only serves the term of the departing justice.
• The Court may hear cases in panels and en banc.
• Larger numbers decrease the importance of each individual justice, and the potential for a tie is a feature and not a bug.

And here is the appointment procedure:

• Each year, the president nominates a justice to replace the outgoing justice.
• The Senate may reject a nominee within 45 days of nomination if at least 60 members vote to do so. The Senate now has a time limit and must act affirmatively to block an appointment.
• After three rejections, the Supreme Court will review the nominees and return to the Senate its judgment as to which nominees are professionally qualified. It will continue to do so for each nominee thereafter.
• Once there are three Court-certified nominees, the Senate has 30 days to pick one of them. If it fails to do so, the president can pick any one of the three without Senate approval.
• Upshot: there is a check on the appointment of the corrupt and the crazies, but the president will almost certainly achieve an appointment each year.