I suppose I'm in a ranting mood. But here I ago, apologies in advance.
The Supreme Court has become politicized. There's no going back. Whoever you want to blame, it's happened. I blame McConnell and his criminal cohort, you may blame Harry Reid, or Trump, George Bush, or Obama, or even the framers. But that is the situation, whether it started with Bush vs Gore, or the Garland Affair.
If the Republicans violate their own standards and nominate someone for RBG's seat, it will be irreparable. Dems will almost certainly pack the court with another 2 or more judges, and then the next time a Republican is in office they will add another 2 and we will be on the path to a Banana Republic even more so than we are now.
The only solution is structural reform, a constitutional amendment. Now, I don't believe this will happen, but I am laying out what I think should happen.
I want to bounce off the ideas proposed by others than when there is a vacancy on the court, the other 8 Justices should unanimously appoint a successor. In this way politicians are taken out of the equation, and legal scholars are brought into it. This is a plan based on consensus and moderation that would ultimately lead a court of moderates and scholars who would leave law making to law makers.
I think it's a good idea, but I'm pessimistic it would ever happen.
We
can restore the idea that the Supreme Court (and the rest of the judiciary) is supposed to be nonpartisan, apolitical, objective and neutral, if enough Americans want it, say that is what they want, and to stop being "realists" as brucejoel99 (see my comments below). We need more people to make suggestions like yours and to stop being so "pessimistic" that it can't happen, which is tantamount to "accepting" that the Court is political, in which case we ought to be holding national elections for seats on the Court instead of having them be appointed.
I don't disagree that the Court IS political. I'm certain that they all Justices are basing their decisions, in far too many prominant and important cases, on their own values. One wing of the Court is consistently conservative, another wing is consistently liberal, and there are moderates who "swing" decisions to the liberals from time to time. But I refuse to "accept" that this is what Justices are supposed to do. The Court is always supposed to be objective and neutral. All of the Court's members should be objective and neutral.
We DO need to depoliticize the appointment process, and I commend you for making any suggestion towards that end, any suggestion that CAN transform the Court into being a body that would be made up of the most objective interpreters of law. Your suggestion is not new and unique. Just yesterday I saw a couple of people in the U.S. General Discussion board post the same suggestion. I praised the first person who I saw post that suggestion, and I went to Facebook and posted a comment for the public to see in which I said: "I just saw a great suggestion on a political debate website. We need a constitutional amendment that makes the Supreme Court pick its own new members whenever there's a vacancy, and that the Court has to be unanimous in choosing its new member. This suggestion would take the politics out of process of selecting the members of a court who are supposed to be the most highly objective interpreters of law in the country. What do you say?"
However, one of my friends replied in a way that has given me pause. He said, "No. No body should be allowed to select its own members." It has given me pause and made me reflect on whether it IS a good idea.
I'm just desperate to come up with some way of depoliticizing the process of appointing new Justices, and to steer the process towards greater objectivity. Nineteen years ago, in Alan Dershowitz's book "Supreme Injustice: How the High Court Hijacked Election 2000," he suggested the following.
The time has come to change the criteria for Supreme Court nominees and to depoliticize the process of appointing justices. If justices are simply lawyers appointed for their political realibility, then why should the public accept their decisions? For a court to have legitimacy, it must carry the moral authority of the ages and of a historical continuity with the past. It must display a commitment to precedent that constrains the incumbents even when they are strongly tempted to follow their own preferences. The public must be rightly convinced that the decision is a product not of the justices alone but of history, precedent, and law. ... (Page 202.)
The first step must be to distance the process from partisan politics and to demand that greatness be the major criterion for appointment to the high court, as it is in many other countries, and as it has often been in the history of this nation. The Sente and the president could begin by jointly appointing a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criterion of greatness, withought regard to party affiliation, race, gender, ideology, or other such factors. After a thorough investigation, this list would probably be pared down to about ten candidates. The president would be expected -- thought he could not be compelled -- to pick a nominee from that pared-down list, unless he could produce good reasons why another person, not included on the commission's list, qualifies as a potentially great justice. Any name selected from the commission's list would carry a strong presumption of confirmability by the Senate. (Page 203.)
I like that idea as well, and it would not even require a constitutional amendment to use that process. It would not tamper with our Founding Father's original design for checks-and-balances among the three branches.
Now, regarding brucejoel99.
At the risk of being pedantic, what would it even mean to depoliticize the Supreme Court? The institution is inherently political because its judgments have implications for public policy. It's just not realistic to expect it to remain free from partisan & ideological concerns.
The best you can do is to have an informed, active, & organized public that makes its voting decisions with a relatively impartial judiciary in mind, &:
The Founding Fathers set up a judiciary that would be independent of the other branches in order that it would have the capacity to do its job objectively, impartially, and neutrally. But you are saying that it is "just not realistic to expect [the judiciary] to remain free from partisan & idelogical concerns"? So are you a "legal realist"? And you are saying the electorate is never going to want the Court to be free of partisan and ideological concerns? That's terribly cynical of you, and I had thought better of you until now.
Benjamin Cardozo wrote, about 100 years ago:
The traditions of our jurisprudence commit us to objective standards. I do not mean, of course, that this ideal of objectivity is ever perfectly obtained. We cannot transcend the limitations of the ego and see everything as it really is. None the less, the ideal is one to be striven for within the limits of our capacity. ...
The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." (Cardozo, "The Nature of the Judicial Process," 1921.)
Please, don't be a "legal realist" who believes that all judges base their decisions on their own values. As Alexander Bickel once wrote, "It was never altogether realistic to conclude that behind all judicial dialectic there was personal preferences and personal power and nothing else." (Bickel, "The Least Dangerous Branch," 1962, page 80.) If all judges based their decisions about what the Constitution means on their own preferences, then, to quote Bickel again, "[T]hat is a reality, if it be true, on which the edifice of judicial review to be based, for if that is all judges do, then their authority over us is totall intolerable and totally irreconcilable with the theory and practice of political democracy." (Ibid.) If we are all supposed to accept the idea that all judges are political in their decision-making, and nobody is supposed to be so unrealistic as to demand an impartial, objective Supreme Court, then that is far too cynical, and to quote Alexander Bickel once more, "The sin [of cynicism] is mortal, because it propogates a self-validating picture of reality. If men are told complacently enough that this is how things are, they will become accustomed to it and accept it. And in the end this is how things will be." (Ibid, page 84.)
