It seems like every legal organization, politician, and presidential crony submits one or more names of potential Supreme Court justices to the president when a new member must be nominated. In many cases, the stated goal of these submissions is to propose someone who will retain the balance in the court, in other cases it is to propose someone who will move the court in one direction or another. Yet, as far as I know, the justices themselves have no input into this process.
I propose that justices be asked to create and maintain a short list, to be kept private until they retire or die, of individuals that they believe to be most qualified to replace them when the time comes. This list, while certainly not binding on a president, would be very useful, and, I believe, would deserve a relatively high priority.
There are several advantages to having the justices themselves suggest replacements.
- They understand better than outsiders what their own positions and roles in the court have been.
- They see a multitude of clerks and lawyers who come before them, and they evaluate countless arguments from judges on lower courts; as a result, they are highly aware of the competences of many potential candidates.
- Because they are appointed for life, they tend to become less partisan and more focused on the realities of the court and of the kinds of decisions that must be made by the court.
- They are uniquely concerned with their own legacies and would probably come the closest in specifying individuals who would preserve them.
- Their lists would have the minimum likelihood of changing the direction of the court (some would see this as a disadvantage).
I think that even now, Justice O'Connor could create such a list and quietly submit it to the president. Who knows, he might give it the priority it deserves.
Greg Shenaut