Saving The Courts

Yesterday’s post focused on the unending stream of ideologues being elevated to the federal bench under Trump.

Assuming–as even the least optimistic among us must–that massive turnout in  2020 rids us of this ignorant, corrupt and malevolent administration and enough of its feckless enablers to change control of the Senate, how might a new administration rescue the federal courts from the partisanship that is tarnishing both their operations and reputations?

My graduate students have some suggestions.

In the take-home final examination I gave my graduate Law and Public Policy class, the following question was one of three from which they could choose to submit a concluding essay:

Over the past several years, the federal courts, and especially the Supreme Court, have come to be viewed by both political parties as political prizes. Rather than choosing nominees with sterling legal credentials, appointments to the courts have increasingly been based upon the nominee’s perceived political ideology. You have been elected President, and your party controls both houses of Congress. You want to return the courts to their status as respected impartial arbiters of the law. What changes would you make to the composition of the courts, the nomination process or otherwise in order to accomplish this?

I was surprised by the number of students who chose this question, and impressed by the thoughtfulness with which they approached it.

A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.

Another popular proposal was the creation of a nonpartisan advisory committee composed of legal scholars, sitting judges and representatives of the ABA, who would be charged with coming up with–and thoroughly vetting– a slate of candidates from which the President would choose his nominee.Some students suggested analogous processes for the lower courts.

In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices–making their tenures long enough to remove the threat of political pressure that prompted the Founders to prescribe lifetime terms, but short enough to ensure more frequent turnover.

One student supported implementation of the “Supreme Court Lottery”  advocated by legal scholars Epps and Sitaraman. Under this proposal, “each judge on the federal courts of appeals would also be appointed as an Associate Justice of the Supreme Court.  When cases are heard, an appropriate number of these judges would be chosen at random to sit on the Supreme Court panel.”

Several students noted the need for a process to increase what one called “demographic accountability”–a judiciary that more closely reflects the composition of the population, and suggested ways this might be accomplished.

All in all, the number of students who chose to answer this question and the various suggestions contained in those responses suggests the existence of widespread agreement on at least two things: 1) the courts are in danger of losing legitimacy (perhaps it would be more accurate to say “in danger of continuing to lose legitimacy–a loss that really began to gather steam with the decision in Bush v. Gore) and 2) partisanship and extreme partisan polarization are to blame.

My students are not lawyers. I teach in a school of public affairs, not a law school, so some of the suggested “reforms” were impractical or otherwise fanciful. But the students in my graduate class tend to be older, employed, with families, and they are generally thoughtful and civically-engaged. During the semester, virtually all of them demonstrated deep concerns with the dysfunction, chosen ignorance, and theatrics that have replaced  working governance.

Of course, if the people who didn’t bother to vote in 2016 stay home again in 2020– if the electorate does not come out en masse to evict the criminals, buffoons and fellow-travelers who are running roughshod over America’s ideals and Constitution–  suggestions for reforms will continue to be beside the point.


  1. “A number advocated Increasing the number of Supreme Court Justices, noting that their number is not mandated by the Constitution and has been changed previously. Most suggested a panel somewhere between 12 and 20.”

    Due to the vast increase in the population and overcrowded court systems at all levels; increasing the number of federal courts and Supreme Court Justices makes sense, but shouldn’t it require an uneven number in SCOTUS to prevent a tie vote. With a tie vote; who would be qualified to break the tie?

    “In recognition of the fact that people live far longer these days, several suggested limiting the terms of Supreme Court Justices”

    This suggestion has come up more and more often regarding not only Supreme Court Justices but the number of terms of elected officials. Regarding SCOTUS my mind went immediately to Justice Ruth Bader Ginsberg and what a tremendous loss this would be, not only to SCOTUS, but to Americans who still believe in Justice. Regarding the number of elected official’s terms; we would be throwing out the good as well as the bad with the limitation. Regarding “Saving The Courts” in general; during my personal experiences in the court system and my 5 years in the Marion County Municipal Court Probation Department I have witnessed and been subjected to injustice due to the lack of impartiality which is supposed to be the basis of the judicial system. Just as we are helplessly witnessing McConnell’s iron-fisted rule in the Senate with no way to force upholding his Oath of Office. Justice is NOT blind; nor is it deaf to payoffs in many forms.

  2. Something certainly needs to be done. We had the same problem during the Reagan administration. The court system at all levels was stuffed with party hacks. That was a generation ago, and it looks as if it will take another generation to clear out the dead wood that Senators Grassley and McConnell are cramming into the system today.

  3. I wholeheartedly support all the suggestions advanced by your students. We now need to create the way they might be implemented.

  4. How about a Constitutional Amendment requiring a 2/3 vote of the Senate for confirmation of SCOTUS nominees?

    I would also like to see a panel created to oversee the decisions of Federal judges and initiate impeachment proceedings when they have gone outside the bounds of the law, as Mr. Kavanaugh did in the case of the immigrant girl seeking an abortion. His otherworldly attempts to delay any possible decision until it was too late to have an abortion should have at least called for censure.

  5. Trump has appointed nearly one-fifth of all district court judges and a quarter of all federal appeals court judges. The effects of these lifetime appointments will impact our children and grandchildren well into the 2050s and beyond due to lifetime tenure in those position. A woman who believes that all embryos have human rights and must be treated accordingly was seated just this week.
    At the very least, there should be a review process regarding judicial performance and competence, especially in regard to recusal, as well as periodic mental fitness evaluations. The potential for very young appointees from the Federalist Society still sitting 40+ years from now frightens and portends firmly entrenched power for decades to come. Institutional memory and life-experience, valuable as they are, should be considered important but not to the exclusion of competent judicial knowledge and temperament. The fact that we have a SCOTUS member whose idea of defense is insulting, shouting and challenging life choices (Don’t you like “beers”?) does not bode well for the future of the rule of law in this country.

    Sadly, we see numerous examples of countries where the judicial systems are compromised and so corrupted as to be completely irrelevant or tools of dictatorship. What is happening right now in such places as India, Columbia, Venezuela, Brazil, Hong Kong, Saudi Arabia, Iran and Sudan are only a few examples of our futures writ large and long. China and Russian continue as autocratic judicial systems serving only the ruling power structure with ruthless, inhumane and arguably genocidal consequences for their populaces, Considering that India and China alone account for more than a quarter of the world’s population, growing exponentially every year, world dictatorship may not be just a dystopian nightmare.

    The Republicans relentless gerrymandering and voter purges guarantee that the oligarchs control of their agenda with the rigged outcomes of local, state and federal elections continues unabated. Propaganda, fed to willfully ignorant and fearful sympathizers results in skewed representation, if such a thing even exists anymore. As long as the judiciary is compromised and beholden to the political powerful, things will not change and may get worse.

    Not a sunny prediction, but perhaps a realistic one. Prof. Kennedy’s students may be our last hope for reforms that are well-reasoned and balanced. Civics education may be the only true remedy for what ails us.

  6. Our dystopian reality gets worse by the day.

    As the corporate masters increase their control over the plebs, what will it take for a working-class revolt?

    Waiting to vote for candidates who aren’t moral cowards seems like it’s not moving the needle much at all.

    While the Democrats were calling our POTUS a national security risk, they all (but 44) raised their hands to a record spending bill for the MIC.

    We don’t have the monies to improve the lives of the working class, but we have plenty for endless wars and regime changes around the globe. We spend over half our national budget on our “defense,” which, according to the number of military bases throughout the world, is really on “offense.”

    Meanwhile, we are destroying public education and converting it to work training for obedient serfs.

    With the trajectory we’re taking, this is not going to end well for the plebs.

    So, what’s it going to take?

  7. Panetta says: “I think we’re very much at a crossroads where there are really two paths. One is that we really could be an America in renaissance, if we could get our act together and deal with these challenges. Or we could be an America in decline. And right now, my sense is that we’re are clearly moving on the wrong path of an America in decline.”

  8. Vlad the Bad may be despicable but he’s unquestionably smart too. He knew our vulnerabilities well when he decided, with or without consulting his puppet, that facing HRC would be a huge challenge while dealing with a NYC mobster and village idiot would be easy. He also knew that we the people had abandoned effort for comfort and were addicted to advertising/fake news/propaganda/brainwashing on our pervasive social/entertainment media. It was an easy decision for the masters of brainwashing.

    He knew that this was much longer than a four year deal. He dealt us a hand that was likely to lose us the game not just the hand.

    I don’t know about Mitch though. He and Schumer are supposed to be working out the details at the moment of what additional evidence is necessary to decide Trump’s guilt. Mitch says even though there has been no defense at all yet that’s enough. There is no way that’s even possible to be an informed decision.

    It’s harder to see Vlad’s hand in that.

  9. Curmudgeon today – “the people are bad” so “change the process”!

    The Framers built a structure/process of checks and balances. Conceptually, it works reasonably well (see W. Churchill on “democracy”). It is when power-hungry, ideological people usurp it that our system is rocked; change the people. That is the process neath it all – the ballot box.

    As my lovely wife often reminds me, the voters shouldn’t complain…they did it.

  10. The Left has been for sometime harping on the Citizens United SCOTUS Decision that opened the flood gates up and established Money = Speech. It has been for the most part the Democratic Left that has seen the Citizens United Decision as a grave threat to our Republic. Many discussions here and elsewhere and in other Left outlets concerning the influence of the Koch Bros, ALEC, etc.

    The near perfectly triangulated Democratic Candidate for President Pete Buttigieg, has his exclusive Wine Cellar fund raiser.

    As Elizabeth Warren said: “So the mayor just recently had a fundraiser that was held in a wine cave full of crystals and served $900-a-bottle wine. Think about who comes to that,” Warren said, raising a nightmarish vision of a room full of fans of fancy glass. “He had promised that every fundraiser he would do would be open door, but this one was closed door. We made the decision many years ago that rich people in smoke-filled rooms would not pick the next president of the United States.”

    “We need the support from everybody who is committed to helping us defeat Donald Trump,” Buttigieg said.

    Warren replied with a question: “If you can’t stand up and take the steps that are relatively easy, can’t stand up to the wealthy and well-connected when it’s relatively easy when you’re a candidate, then how can the American people believe you’re going to stand up to the wealthy and well-connected when you’re president and it’s really hard?”

    I fear the exclusive “Wine Cellar” fund raisers more than I do Putin or the Russians.

    As a Side Bar it would be interesting to know, just how many lifetime judicial appointments actually serve out a “lifetime”.

  11. Well, there is a whole bunch of Hitchcockian twists to the story. Sure, McConnell and Trump are packing the courts, and that’s why they have such stalwart support from white male evangelicals. This is always been the goal, to keep gerrymandering, encroaching religion into government, remain staunchly hypocritical (don’t do it I do, do it I say), manipulate the ignorant with visions of treasure and power dancing in their heads, and what a better way to do that than to pack the court with a bunch of rubber stamp Gumby’s.

    I can see some of the points from other commenters, and they seem to be at a loss to how to correct the issues addressing this crisis. The fact remains, one political party plays softball, the other plays hardball. Softball players don’t want to set precedents they might have to deal with on the other side, hardball players don’t worry about it. Like I mentioned yesterday, if these yokels had a bad rating from the Bar Association or substantiated complaints of misconduct, then they should be removed by US marshals on Executive Order. Now to prevent this from happening again, work out some ironclad construct to VET judges, and if they have a bad rating from the bar, or a certain number of valid complaints of misconduct, they would not be allowed to be considered.

    It really shouldn’t be that difficult, don’t think what happened in Germany, can’t happen here! There were many Germans that went along with the program, and those with an agenda took the lead in the radical dismantling of German government. We can all see the outcome! We don’t have to guess, history should be our conscience and history is the solemn record of man’s inhumanity to man, along with man’s cowardice in doing the right thing.

    Lord Acton wrote this letter to Bishop Creighton;

    “I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it. That is the point at which the negation of Catholicism and the negation of Liberalism meet and keep high festival, and the end learns to justify the means. You would hang a man of no position, like Ravaillac; but if what one hears is true, then Elizabeth asked the gaoler to murder Mary, and William III ordered his Scots minister to extirpate a clan. Here are the greater names coupled with the greater crimes. You would spare these criminals, for some mysterious reason. I would hang them, higher than Haman, for reasons of quite obvious justice; still more, still higher, for the sake of historical science.”

    Bingo Lord Acton, well said!

    Lord Acton had his blemishes, but, it seemed that he was a man who followed certain tenants of the time he lived in, but he definitely called out the hierarchies crimes, wrongdoings and shenanigans.

    Anyway, it’s obvious that the former conservatives, were not really conservatives at all. They were just looking for an opportunity to put all of their subversive activities together for absolute power. All they needed was a POTUS to go along with the program, One of dubious moral construct, one that didn’t care about burning down the Constitution

  12. John Sorg; the problem is that both Boehner and McConnell ignored their Oath of Office in the Legislative Branch to uphold the Constitution of the United States, McConnell at high crime levels and continues to do so. The only source to force McConnell to perform his REQUIRED RESPONSIBILITIES is the president in the Executive Branch of this government.

    Do you see the problem with this situation? The House is standing alone and the Judicial Branch has no part in the action at this time. Their are no twists; there is simply the fact that there is no actual leader in this government at this time, Trump and McConnell are playing keep-away and tossing the ball back and forth.

  13. Bush v. Gore was, I continue to believe, wrongly decided. Madison gifted the states with the power to regulate elections, including federal ones, and the Florida Supreme Court should have been the final appeal stop on the question of vote counting to conform to the Florida statute governing the same. How the Supreme Court ever went along with a manufactured “federal issue” out of the evidence then available to them remains a mystery to me, though I smell a rancid political rat.

    It wasn’t just Cheney and Bush and their lies about WMDs in re the continuing Iraqi disaster; the Supreme Court empowered such a possibility and by doing so did nothing to enhance judicial legitimacy. In my view, it was the worst decision the court has ever made, surpassed only by Dred Scott, a decision which triggered my resignation from that court’s bar.

    As to the topic today, had I been one of Sheila’s students I would have argued for expansion of the court’s number. To the frenzied claims by Republicans that we are “packing” the court a la FDR, I here note that it is the Republicans who are “packing” the courts right now with unqualified ideologues and that if we are to have independent and ABA-approved jurists we must unpack the court via adding to their number with such jurists.

    I understand that Trump is already flirting with the idea of ignoring court orders, probably following the opinionated answer of Stalin when asked about papal disapproval of his governing style, to wit: “How many divisions does the Pope have?” Dictators have no “separation of powers” to contend with, having arrogated all powers unto themselves. Our task? Keep the separation of powers and other underlying democratic values and principles alive and well. A massive turnout voting to save our Constitution and democracy November next would help, whoever the Republican candidate may be.

  14. Curmudgeon II – whatever attempts are made at reform, the evil ones will find a way to try to subvert them. Better to simply keep the evil ones out of power and let their “better angel”values be the guide to action.

    May we all have a positively thoughtful weekend…

  15. The following is surmise and I have no evidence from the Federalist Papers or any other source to support it. > It is noteworthy that the judiciary was the third of three (Article III) in the Constitution treated by Madison, suggesting that the two previous Articles were more important in his view of implementing his and Jefferson’s take on democracy. Madison clearly believed the people’s chamber (the House of Representatives) was to be the heart and soul of government and relegated the Senate to appointment status similar to that of the House of Lords in Britain. He gave Article II to the executive, perhaps because George Washington was so revered by his contemporaries, and the pre-Marbury/Marshall third article to the judiciary, thus giving us a government of law makers, law executors and referees.

    With Marbury came the power of the Supreme Court to declare legislation unconstitutional, among other such powers exercised to rein in the powers of the legislators and the executive. It has been a wild ride since then, from Dred Scott to and through Brown, Citizens (un) United and Bush v. Gore. I have been pleased with some of the decisions and not pleased with others, but I am especially put off by the latter since it handed the presidency to Cheney, I mean Bush, and I still think that decision was wrong in that it did not honor Madison’s gift of elections, including federal ones, to the states, which means that the Supreme Court of Florida had the last say on the disputed count and how the court allowed a manufactured federal issue out of that reality is beyond me to this day. I thought in a perfect world that the dissenting opinion should have been the majority if not unanimous opinion of the court, and after our incursion into Iraq based on lies about Iraqi WMD and all that has been transpired since (and yet to come), I am as angry as ever with the court’s opinion seating an incompetent candidate in the Oval Office.

    These are the kinds of things I am burdened with thinking from day to day. Merry Christmas!

  16. Our first problem is that the Democrats never seemed to care about courts, although “liberal” lawyers did. While Sheila may be right that both sides have come to consider the Supreme Court as a “prize”, only the Republicans have acted on it. Democrats have always worried about being “bipartisan”, appeasing “Blue Dogs”, or otherwise trying not to move the court to the left as the Republicans have moved it ever further to the right. John Sorg is right – Democrats are trying to play softball at a Republican hardball game. When the Democrats have appointed judges and justices, they have spent a great deal of time vetting them, finding “experienced” (read older) candidates. The Republicans have pushed through non-vetted, young ideologues.

    The claim, by MSNBC’s Pete Williams that both sides move the courts to their ideological sides is flatly wrong. I will point out that some years ago, former Appellate Court Judge Richard Posner avered that all Supreme Court appointments since Reagan have been to the right of the justices whom they were replacing, including appointments made by Democrats. He also, having a low opinion of the current court, suggested a 19 member Supreme Court. I will also remind everyone that he was appointed by Reagan.

    Sheila, I think your students had some good ideas (and some bad). Mandatory retirement (along with term limits) gets rid of the good with the bad. Diversity is great, but again, strict guidelines would deprive us of the notorious RBG – too few Jews in the country to merit a court seat, let alone the number that are and have served. Increasing the size of the courts sounds good to me. If the Republicans complain about packing, tell them that denying hearings and then rushing through the unqualified candidates seems more like packing. For once, Democrats need to stare Republicans in the eye and say “too, bad – you made sure the fix was in for the extreme right – we are breaking your fix.”

  17. As has already been mentioned, we are where we are for various reasons but the primary reason is because our majority has chosen to ignore its responsibilities as voters. We have become a mentally lazy population that reacts mainly to reality entertainment coming from one electronic source to another. We are comfortable being mired in prejudice, hate, and murder.
    Sheila, thank you for sharing your students’ thoughts. This gives me and others hope. In my limited life I truly appreciate constructive and thoughtful ideas.

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