by Marc J. Randazza
I hate that the Supreme Court often comes down to a political battle. I’d like to see it more insulated from the politics of the day. To that end, stare decisis, is a wonderful thing. But, at the same time, if we elevate stare decisis to too exalted of a place, we are saying “once we make a mistake, we can’t fix it.” I’d also like who is on the Court to matter less. If it all comes down to just nine personalities, that’s a helluva way to run a legal system. Hell, the entire federal legal system is messed up… I’m going to try and clean that mess up for you.
Take the Focus off of the Court in Elections – Every Presidential Term Gets at Least One Justice
This is not 100% an original idea, but I can’t find where I first saw it. Each President gets one justice per term. Therefore, the court can at times have more than 9 justices on it. Let’s say that Biden gets re-elected, and Clarence Thomas says “I’m not going anywhere til I’m 100 years old.” Biden gets to name a new justice. Now there are 10. Every case randomly excludes a justice. Then, Thomas sadly passes away. Biden does not get to name a replacement unless someone else dies or retires. This should lower the stakes for the Court in each election.
An Oldie But a Goodie – Supermajorities
We have to return to the norm that at least 60 Senators must agree on every judge – not just SCOTUS. We need consensus. In fact, I’d raise that to 66 Senators. This 51-50 shit is stupid. It is a lifetime appointment to the most powerful court in the country. There is a reason that historically, SCOTUS confirmations were overwhelming — because presidents necessarily had to choose someone they knew would slide with the minority party. Now, they can pick someone who doesn’t even know what a woman is. Or they can pick Kavanaugh. Even if you think Christine Blassey Ford was a reality TV clown show produced by clowns for clowns (as I do) you have to admit that Kavanaugh was a polarizing-for-no-good-reason pick. A Supreme Court without either Justice Jackson or Justice Kavanaugh is a better Court. With only a simple majority, Court picks stray from finding judicial stability and judicial talent and it turns into each party simply picking who their best middle finger to the other side can be.
The Circuits and the States
I don’t like that the President can pick anyone they want. Remember when George W. Bush picked Harriet Miers? What was that? Personally, I think it was because he really wanted Alito, and he figured he could have the Democrats blow all their wind on mocking Miers. If so, it worked – and he got confirmed 58-42.
I think, instead, the President should either be constrained to choosing someone who has already served on a Court of Appeal or a State Supreme Court, or there should be a pool of candidates that those Courts themselves nominate. So if Justice Sotomayor retires, then each of the Courts of Appeal, (the 11 geographic districts, the DC Circuit, and the Federal Circuit) and each State Supreme Court can vote amongst themselves to choose who to put into the pool. I guess I would even permit each of these constituencies to select someone from one of their subordinate courts, if they felt that was best. So, if Florida preferred to send a great judge from its 5th DCA, or the 9th Circuit said “you know, Judge Boulware is a great judge, and we would rather see him than any of us on SCOTUS” then fine. Hell, I’d go so far as to say that if a state or a Circuit wanted to pick anyone outside their ranks, that would be fine. The point is that the pool for every SCOTUS pick will be 63 people – and those 63 will be pre-vetted by a state supreme court or a federal Court of Appeals.
En Banc and Stare Decisis
When you shift your car into reverse, there’s always some extra step. You either have to push the gear shift down, or pull up a plunger of some kind to get it into reverse. The Court needs an extra step too. If you don’t know what I am talking about, then go learn how to drive a real car.
In the Courts of Appeal, all cases are assigned to random three judge panels. If there is a prior decision in that Court of Appeal, then the three judge panel is bound by that decision. However, if you want to challenge that decision, you can do so if you are able to convince the Court to hear the case en banc. For you non-lawyers, that means that all the judges in the Circuit re-hear the case. In the 9th Circuit, since there are so many judges, you just pull a random 10 judges plus the Chief – with the theoretical “super en banc” (all 29 judges) still permissible, but I think it has never happened.
In the Supreme Court, I would say that consistency matters – a lot. But, reversing mistakes matters too. For example, I think Bowers v. Hardwick was wrongly decided, and in Lawrence v. Texas the Court agreed — a mere 17 years later. I also think that Roe v. Wade was wrongly decided (although, as a matter of individual liberty, I begrudgingly hold my nose and support the right to an abortion while abhorring the practice personally). I also find Justice Thomas’ view on New York Times v. Sullivan to be persuasive, and while I wouldn’t throw it out completely, I do think the Court’s decisions expanding the “public official” doctrine to mere public figures are worth reconsideration. St. Amant v. Thompson essentially says that the Press has no responsibility to even try and get the story right.
But, reversing Roe, Sullivan, or even St. Amant, at this point, will change a lot — overnight. Yes, the Supreme Court has always had the ability to play Cho Chabudai Gaeshi! with nearly anything at any time. But, maybe it shouldn’t be able to simply do a u-turn any time 5 out of 9 people think it sounds like a good idea.
So why not have a SCOTUS en banc? An even larger Court, which is required if you’re going to reverse a prior decision of the regular Supreme Court.
Couple it with the idea above, and that might work – but then you’re stuck if you only have nine justices. If you have ten, that’s hardly a “banc” to change things. Sure, there could be a tie, but you could have a “ties lose” rule.
That’s when you go to each Circuit and grab the Chief Judge of that Circuit, and they sit on SCOTUS, by designation, any time there is an en banc case to be decided. This would make for a pretty large deliberative body — the nine justices (or even a few more at times) plus the 13 Courts of Appeal. But, I think overturning settled law should be harder than establishing precedent in the first place.
While We’re At It – District Court Judges
Here’s how it happens now: You go to law school. Then, you do something but in the meantime, you either donate a lot of money to one political party or the other, or in some other way demonstrate your loyalty to a particular political party’s views. Then, if you gave enough money or enough people who did happen to think you’ll grind the gears in their direction, your name winds up on some Senator’s desk. That Senator lobbies for you to be picked, you are, then 50 Senators say “yeah, screw it, put her on the bench.”
Sometimes, that accidentally results in good judges. Or bad ones who learn how to be good. Or just
terrible judges who are there to promote their agenda or to settle perceived or actual scores. There’s no real “vetting” of these people for skills or qualifications – it is entirely political. Yeah, the ABA claims to vet them – and will sometimes even say that they’re “unqualified.” That never matters. Nobody cares what the ABA thinks except the law schools (that’s a rant for another day). These un-vetted usually (more so nowadays than in the past) political hacks who need only appeal to 50 senators, then are appointed for the rest of their lives or until they figure out they can draw a pension and then go do private arbitrations for $900 per hour, where they have even less accountability.
On the other hand, federal magistrates apply for the job, are vetted and hired by committees, and in general are fantastic. I am not blowing smoke up the magistrate’s asses here when I say that I have never been before a magistrate who didn’t work hard, do their best to come up with the right decision, and who didn’t practice their craft with 100% integrity. I can say that about many federal judges, too. But I’d be struck by lightning for being a liar if I told you it was all of them. I would be gambling with my life if I told you it was even 51%. Don’t believe me? Ask any federal litigator about a case, and the first question they will ask is “who is your judge?” If they don’t know anything about the judge, personally, their next question will be “who appointed them?”
That’s a sign that the system is sick.
So here’s my wild idea — make judging a separate profession from being a lawyer.
You want to be a federal judge? Then you need a degree in … whatever, let’s call it “judgery” until someone comes up with a better name. To get that degree, you need either law school or at least half of it, plus a two year clerkship with a sitting federal judge or magistrate.
After that, you are in the “judge corps.” Yeah, like the military. Well, more like the Italian Carabinieri. The Carabinieri are a federal military police. If you join the Carabinieri, your first tour of duty must be somewhere that you are not from. Why? Obviously, because you’re more likely to be clean if you are from Palermo, but you wind up serving in Bologna. You won’t have so many local prejudices, local connections, and local corruptions. Your second tour of duty, you can go back home, if you want.
Once you get your judge license, you’re off to your first deployment — wherever the judge corps needs you. No local senator diddling around with this. No local law firms getting an edge because you used to work there. No petty scores to settle from high school. You know nobody, and you judge accordingly.
After your first 5 year term, attorneys in your district vote on whether to retain you or send you somewhere else.
If you’re sent somewhere else, your second term has the same retention or transfer vote.
At any time during your tenure, in any district, there can be an action brought to transfer you to another district. If it is filed, then there will be a vote within 60 days by all attorneys in the district. if 3/4 of the attorneys vote to yank your judge license, you lose it. If 2/3, then you’re involuntarily transferred.
Federal rules should be amended to give any party a right to a peremptory challenge of the judge assigned to their case with no questions asked, but you can file this only prior to any rulings by the judge. The judge with the most peremptory challenges in a district every year is reassigned to another district, involuntarily.
If you have three involuntary transfers, either due to vote or due to being the most peremptoried judge in the district, you’re done judging.
After any successful appeal, the case must be remanded to a new judge. The most reversed judge in the district is also involuntarily transferred.
To do all this would be largely impossible without a Constitutional amendment or without some major consensus on new non-binding norms. I’m not stupid. I get that. But, this is not legislation, this is aspirational. But, I think this plan addresses what is wrong with our courts — at least our federal courts. So, get to work.