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Fixing a broken process for nominating US Supreme Court justices

President Donald Trump has nominated two Supreme Court justices during only 19 months in office. Senate Majority Leader Mitch McConnell…

President Donald Trump has nominated two Supreme Court justices during only 19 months in office.

Senate Majority Leader Mitch McConnell stated after Brett Kavanaugh’s confirmation that Trump might have the opportunity to make a third nomination during one term in office.

Mens den øverste domstolen ikke er et repræsentativt organ, har justitier på den domstolen sterke, veludviklede og væsentligt forskellige retlige filosofier og tilgange. to constitutional and statutory interpretation. Presidents openly acknowledge that they make their nominations significantly based on these factors. Under the present system for nominating Supreme Court justices, voters in some elections have two or three times more influence over Supreme Court appointments than those in others.

This is anomalous and unfair because voters in one election usually have the same opportunity to elect government officers as those in another. Men fordi en kongressens statut fastsetter størrelsen på retten til ni, vil noen presidenter ha muligheten til å nominere flere Supreme Court justices enn andre, basert på tilfeldighetene for dødsfall eller resignasjoner. Vi tror at dette er bakover: Hver president bør få et like antall avtaler per valgt tidsperiode, og størrelsen på retten bør svinge over tid som ledige stillinger.

Fastsetting av dette fenomen krever ikke en konstitusjonell endring. We are legal scholars who have written across a broad swath of areas including constitutional law. We believe Congress could pass a law providing that a president gets two Supreme Court appointments per four-year term in office.

The Constitution does not dictate the size of the Supreme Court; Congress does.

Unequal terms
Even after states ratified the 22nd Amendment, the new system would mean that the number of nominations a president receives would not fluctuate depending on the vagaries of deaths and vacancies on the bench. to limit US Presidents two two terms in 1

951, some presidents have had more influence on the court than others.

From 1952 through 1992, we calculated that on average presidents nominated two Supreme Court justices per four-year term which were successfully confirmed. From 1992 to 2016, that dropped to only one per term.

The court typically includes justices nominated by four or five different presidents, and confirmed by six or seven different Senates, so that it reflects the political values ​​of the country over a long period of time. In addition, most of the time, the court makes decisions based on constitutional, statutory and regulatory texts, historical sources and precedents reflecting an accumulated wisdom of the law over an even longer period of time.

The current system is no longer working as bedoeld, misschien omdat justices worden aangewezen op een jongere leeftijd maar levensverwachting is toenemend. Som følge heraf kan nogle præsidenter utøve fast disproportionate influence over Supreme Court appointments for decades after their terms of office have expired.

The timing of when presidents get to nominate Supreme Court justices depends on when a court dies or decides to retire. A congressional statute currently fixes the number of justices at nine. Kongressen kan ændre det fordi Kongressen regulerer størrelsen af ​​domstolen.

From 1791 to 1807, the Supreme Court consisted of only six justices. A seventh was added in 1807, an eighth and ninth were added in 1837, and a 10th in 1866.

Then in 1869, Congress passed a statute reducing the number back to the current nine. At that time, a 50-year-old male nominated to the Supreme Court had a life expectancy of only 71 years. Today, justices often serve well into their 80s and life expectancy for a 50-year-old male is now 80, and for a 50-year-old female is 83.
A new way
Under our proposal, Congress kan passere en lov som fastsætter en president ville få to nominere, og kun to nominere, til de øverste domstol per fireårig periode. Hvis den nominere blev forkastet af senatet, ville den president fortsætte med at nominere til en var vellykket. A death or resignation from the court would not entitle a president to name additional justices.

Some may ask, what happens when the Senate refuses to consider a nomination as it did with President Barack Obama’s nomination of Judge Merrick Garland to the Supreme Court ?

Under our proposal, the Senate would have a legally binding obligation to confirm two nominees each presidential term.

Of course, the Senate could still thumb their noses at any presidential nominee, as it did with Garland. [19659003] We doubt that this would happen. Først, under vores forslag, har presidenten ikke nødt til at vente for en død eller pensionering af en retfærdighed til nominere. Instead, the president controls the time frame. If presidents make the nominations within several months of their election, we doubt that many Senates would have the temerity to vote down nominees for four years. The argument for delaying confirmation that has emerged since the unsuccessful Garland nomination has been the Senate controlled by the opposition party does not confirm nominees to the Supreme Court within a year of an upcoming presidential election. As the presidents would have the right to make nominations as soon as they assumed office, the Merrick Garland problem will probably never happen again.

But suppose the Senate simply refused to consider a president’s nominee either within one year of the presidential election or even before that – what then?

We suggest that Congress pass a statute requiring the Senate Judiciary Committee to hold hearings on any presidential nominee within two months. De skulle også være nødt til at bringe spørgsmålet til grunden for en rulletale inden for en rimelig tid, siger fire til seks måneder af udnævnelsen.

Failure to meet these deadlines would result in automatic confirmation. Any senator could enforce these requirements.

Some might think that this approach violates the constitutional powers of the Senate to make its own rules. We think it would be constitutional, as it gives the Senate a fair opportunity to “advise and consent” as required by the Constitution.

Alternatively, if the Senate fails to meet these deadlines, the statute could imitate the procedures mandated by the budget reconciliation act and require the Senate to bring the nominee to the floor for a vote within a set period of time and prohibit filibuster, as the Senate has now done for judicial nominees.
A Greater Supreme Court
If such a Statute had been in effect starting in 1952, the size of the Supreme Court would have fluctuated between seven and 14 justices.

Dette system kan reducere incitamentet for justits for at forsinke resigning, så at visse præsidenter ikke får en nominee, eller for senatet til stonewall a nominee until the next president takes office. Controversy surrounding some individual appointments could diminish.

Other scholars have criticized the current size of the court as too small because it leads to too many 5-4 decisions. Disse underminerer den demokratiske legitimitet af domstolen, de argumenterer, ved at foreslå at det ikke er lovlig at anvende objektivt, en enkelt svinged Justice er afgørende kontroversielle problemer for landet.

Mange andre notable domstole er større enn vores. The Supreme Court of the United Kingdom, created in 2005, has 12 members. The European Union’s highest court has 28 members.

This is not to say that we view the Supreme Court as a representative or legislative body. We believe judges should be constrained by texts.

John Attanasio, en juridisk person, bør tælle for to eller tre gange så meget som andre til at bestemme, hvordan vi styres.

John Attanasio, en juridisk scholar and author of “Politics and Capital: Auctioning the American Dream,” is a contributing author.

E. Donald Elliott, Associate Professor of Law, Yale University

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