MusicianinLA has written an excellent summary here of why something needs to be done about SCOTUS (the Supreme Court Of The United States, for those of you not in the biz), and by extension, I believe, the lower federal courts. But what is to be done and how do we get it done?
I’ve put together the following list from that story and comments and my own thoughts. I hope you will comment on it and add to it. One constraint, however: keep it possible. If we need a constitutional amendment, it ain’t happening. So forget about term limits or reducing the number of authorized positions to get anyone now on the bench off of the bench. Or, my own favorite, a minimum age requirement.
1. By all means, expand the courts. But go big: eight more justices for SCOTUS, a two-fold increase at the lower appellate and district court levels (meaning 1 becomes 3). All to be nominated by the President of the United States at the recommendation of a commission headed by some liberal worthy (I see Barack Obama isn’t employed anywhere just now) and other jurists and scholars of note (and integrity: no, Ken Starr will not be a member of my commission). The Commission’s rules of operation will preclude recommending anyone who will not answer, as of that moment in time and without need of any prior study, as to their views on the most pressing constitutional and statutory issues they may face. No more of this “hide of the ball” thingy. With the Senate filibuster rules this is not practical. But if Throat Pouch Moscow Mitch can change the rules for his appointees, we can and should do so as well. As Kegs once said, “what goes around, comes around.” Or the other way around? “What comes around, goes around”? No matter. Same diff.
2. Appoint new chief justices at selected appellate courts (5th and 6th at least) and SCOTUS. Ousted chief justices can remain as associate justices to satisfy life tenure requirements. I am not sure whether this is possible, but if there is even just an opening to discussing it, doing so would send a powerful message of censure to the existing chief justices.
3. Introduce legislation that no federal or state court shall have jurisdiction to interpret any Federal law (including the Constitution) until the President has certified that the integrity and impartiality of the federal courts has been restored (without objection of two-thirds of each house of Congress). Remember, SCOTUS only gets to interpret the Constitution by reason of one of its own prior decisions — it is not certain from the Constitution itself. Ok, I admit enacting such legislation is likely impossible because SCOTUS would almost certainly invalidate it and even a bit dangerous as it leaves the interpretation in the hands of the executive and his or her minions in the interim. But the censure effect, even of just holding hearings on the proposal, is delicious.
4. Miscellaneous changes to the rules of court procedures. For example, the decisions of any panel of appellate court judges consisting of less than the entire bench and with a majority of Bush and Trump appointees would be appealable by the losing party to the entire bench as a matter of right. Ethics complaints must be publicly disclosed and the evidence summarized with minimal redactions if they can not be investigated.
5. Appoint a special prosecutor to investigate whether any crimes were committed in the process of appointing the judges appointed by Trump. I am thinking here first and foremost of the lies Kegs told (allegedly) and all of the people who conspired to cover up his crimes (possibly!). But every nominee answered some version of “I spoke to no one about my views before being nominated.” When Grassley said (as I believe he did) “Democrats can’t know . . .” did he mean because no one knows or because no one told them as they did Republicans. I did not watch all of his remarks, but even if he explained away the remark I believe I heard we ought to investigate whether it might have been an inadvertent admission.
6. Open the National Archives on the government service records of every appointee, waiving executive privilege whenever necessary. And of every member of The Federalist Society. Make sure none of these people progress any further only by virtue of the Republicans’ willingness to hide the truth. After the House Judiciary Committee gets a chance to investigate whether to impeach any appointee, of course. Yes, Kegs, I’m talking about you in that last sentence.
7. Demand the recusal of every SCOTUS Trump appointee in appropriate cases and do so openly. For Kegs, that would include any cases involving political parties or left-wing organizations: for Barrett, at least voting in this election. If the Rules don’t allow an open demand, change them. Remind them in every case possible of the stain on their reputations from the process by which they attained their positions. Delegitimize every dubious decision in which they participate.
As to how to get any of this done, I haven’t thought further than reducing this discussion (and any community comments) to its essentials, and posting it everywhere.
But what say ye?