26. Supreme Court & Federal Courts

Many of these ideas come from Erwin Chemerinsky in an article he wrote in July, 2014.

Supreme Court

Panel for Selecting Supreme Court Vacancies

A representative panel of experts must be created for the purpose of selecting merit-based candidates to fill the vacancies on the Supreme Court. The President should then be required to choose individuals approved by this panel for the selected vacancy. Perhaps, this whole process from the point when the seat is vacated to the point when it is filled should be required to take no more than 180 days.

Prospective Justices Must Answer Detailed Questions

Prospective supreme court justices should be required to answer detailed questions regarding their views on any issue that may come before them, though obviously not how they would vote in specific cases. Currently, it is customary for them to refuse to answer any questions on issues that might come before them.

18-Year Terms

Supreme court justices should be appointed for single, non-renewable 18-year terms so that vacancies will occur every two years. This will reduce the average length of tenure, ensure that vacancies are regularized, and increase the chances that the views of the justices are more in line with conventional or contemporary views.

Recusal and Replacement

The decision for a Supreme Court justice to be recused from a case should be made by a majority vote of the other justices or a panel of federal court of appeals judges.

If a justice is disqualified from a case, a retired justice should be chosen at random to participate to complete the group of nine to hear a case. If no living former Supreme Court justice exists, then a federal judge should be chosen from a panel of highly qualified judges.

Federal Courts

Panel for Selecting Federal Court Vacancies

A representative panel of experts must be created for the purpose of selecting merit-based candidates to fill the vacancies on the Supreme Court and the federal courts. The President should then be required to choose individuals approved by this panel for the selected vacancy.

While it is perhaps understandable why we would want Supreme Court nominees to go through a political approval process through the legislative and executive branches of government, it is not apparent that a similar process for choosing federal court judges is beneficial. With nearly 1,000 positions to be filled, the potential for constant political interference between the various political parties and the various government bodies that need to coordinate between themselves, is such that it is all too easy for the process to get snagged by some ideological objection by one or a few members within the chain of approval.

It would be best to have these federal judges just apply for the job and have a committee review all the applications and choose the most qualified ones. If political leanings are an important consideration, then perhaps a long questionnaire could be created and all applicants would be required to answer all questions in it. If it is designed right, the questionnaire would fairly accurately assess the applicant’s position on the political spectrum. This questionnaire, in combination with the use of a weighted lottery system, would facilitate a ‘balanced’ selection process over time. To select from within this pre-qualified pool of applicants, a random lottery would be held every time an absence needs filling.

Federal Judge Workload

Federal judges should have workloads that do not exceed 365 cases per year. If workloads in any jurisdiction exceed this threshold, more judges should be added for the following calendar year. Perhaps this proposal on determining the correct levels of personnel given the workload would be the fairest way to determine the number of federal judges necessary.

For both Supreme Court and federal court appointments, the time between the beginning of an absence until the time it is filled should be no longer than 6 months.  If it exceeds 6 months, the parties responsible for the delay would have their pay withheld (without interest) and be charged 1% of their average annual pay every day until the vacant position is officially filled.


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