As the final arbiter of the law, SCOTUS (Supreme Court of The United States) is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution (https://www.supremecourt.gov/about/about.aspx). The Supreme Court consists of a total of nine justices with a Chief Justice and eight Associate Justices, all of whom are appointed for life. The number of Associate Justices, currently at eight, is fixed by congress. Whenever there is a vacancy, due to the retirement or death of a Justice, the president nominates a replacement who needs to be confirmed with the “advice and consent” of the United States Senate per Article II of the United States Constitution. SCOTUS is the highest court of the land i.e., its judgements on cases or issues brought to it is “final” until, of course, it reverses itself at a later point in time. The only recourse to overcoming the impact of a judgement or its reversal is through legislation by congress.
Unfortunately, due to partisan membership of Senate, the majority party plays a big role in confirming or rejecting a nominee of the president. Even when a president’s party has a majority in Senate, the confirmation process used to be extremely difficult with Senate rules allowing unlimited debate (a practice known as filibustering). To end the debate, it required the votes of 3/5 of the Senate or 60 senators (known as the cloture vote). The Senate changed this rule in April 2017, and lowered the required votes to 51 to end debate on Supreme Court nominations (this is commonly known as “the nuclear option”). https://guides.ll.georgetown.edu/c.php?g=365722&p=2471070 If the president’s party happens to be in the minority, the confirmation process is doomed to fail, as happened in fall 2016. https://guides.ll.georgetown.edu/c.php?g=365722&p=3230139
The framers of our constitution envisioned that the membership of the Senate will consist of highly learned, well behaved, wise, civilized gentleman and gentlewoman who will be able guide the president and the country in choosing the next Justice from among the best jurists the US has ever produced. Instead, the nomination process has become a highly partisan power grab with little regard to qualifications and merits of the person who would become an Associate Justice or a Chief Justice. In this regard, the 3/5 required votes to confirm a justice was part of the checks and balances built into the constitution. However, when the simple majority in the partisan senate circumvented this by changing the rules and were allowed to do so by precedence, it broke the system. In recent years, it has become evident that SCOTUS has become biased by simply reading the majority and minority opinions and rulings on critical cases brought before it. These rulings appear to have greatly diminished the high respect and admiration that the Supreme Court once enjoyed among the US population and the world. It looks as if it has now become just a pawn in the politics of power.
Using the collective will of the people through DSC or Democratic Socio Capitalism (please read – What is DSC? and how to make the transition to DSC), could “we the people” do something to change the broken nomination process of the Supreme Court and restore its importance and glory? There are several ideas to reform the Supreme Court through the national referendum process envisioned under DSC, a few are elaborated below.
The first idea is to go back to the requirement of 3/5 or even 2/3 majority of the Senate to confirm a nominee for replacing a justice on the bench of the Supreme Court. A second idea or requirement is: voting will be by secret ballot, also known as the Australian ballot, a voting method in which a voter’s identity is anonymous. The total yes and no votes received for the nomination will show no party affiliation. This preserves the value of the vote of individual senators without outside attempts to influence their vote by intimidation, blackmailing, and potential vote buying. Further, cash payments, cash-paid-lobbying, intimidation, blackmailing, and potential vote buying of any senator will be illegal (more is discussed under Senate Reform). Also, before the secret ballot is conducted, any senator from any party in the Senate can request individual time (up to 15 minutes maximum) to participate in up to 4 hours of total debate in laying out the merits and qualifications of the nomination including any potential conflicts of interests the nominee may hold. The secret ballot would require all senators to vote even if they cannot be physically present to cast their vote.
The obvious question then is: what happens if the nominee does not meet that threshold? The simple answer is an amendment to the nomination process by “we the people”. The amendment will state that: whenever the nominee falls short of the required majority, there will be second “not-in-person” secret ballot to “augment” the total vote. The votes for the second secret ballot will be electronic and will consist of total membership of the House i.e., 441 votes (435 plus 6 delegates) and all serving justices (8 votes total, if only one is the nominee). In the absence of a member due to resignation or death, the member’s vote will be substituted with a vote from the governor of the state. A simple majority in total of first and second secret ballot would confirm nomination. Nomination fails if the nominee cannot secure a simple majority and the nomination process has to be restarted in the senate.
There are a few more ideas crucial to reforming SCOTUS through a national referendum and discussed briefly, next. (A) Total membership of SCOTUS to be fixed at the current number of nine (one chief justice and eight associated justices). This cannot be changed by congress but only through a national referendum. (B) The senate cannot change the nomination process or senate rules to circumvent the majority requirement of the nomination process. (C) For any open case before the Supreme Court, a secret ballot with a unanimous vote or with only-one dissenting vote (8 from a total of 9) is required to pass a final judgement in the case. If this is not possible, the justices will be given one more chance to amend the final judgement to get support from the full bench and fulfill the vote requirement in a second secret ballot. If, after the second secret ballot, the bench fails to meet the unanimous or one-dissenting-vote only requirement, there will be no judgement and a simple majority of justices could refer the case for a national referendum. (D) The president cannot just pick about anyone to be nominated as a justice to the Supreme Court. To be considered as a nominee to be confirmed as a justice on the Supreme Court bench, the candidate will need to be on the national roster of ranking of “eminent judges” to be created by the National Bar Association. Only judges with a documented history of notable jurisprudence under their belt would make it to the list. (E) All of the justices on the Supreme Court (including Chief Justice) will have a 10-year term limit. A new justice will need to be nominated when the 10-year period ends with no chance for extension. (F) Fifty-Percent or four of the Associate Justices will be women with the Chief Justice alternating between a man and a woman for each 10-year period. (G) Every justice on the bench will need to certified every year by a panel of doctors to be in good physical health to perform the cognitive functions required on the job.
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