Kopf: A Short Take on Selecting Supreme Court Justices

We have turned the method of selecting Supreme Court Justices into a political blood bath. In doing so, we have cheapened the Court. That is, of course, if you agree with me that law and politics are similar but different things.

Here is a proposal that might lessen the problem:

  1. Justices on the Supreme Court, to the extent humanly possible, should do law and not politics even if the result is not to their liking.
  2. The President of the United States has the absolute power to nominate whomever he or she wants.
  3. The power of the President to nominate cannot be fundamentally altered.
  4. But the President should not fear advice.
  5. I propose the following:
    • Congress enact a statute that allows the Justices of the Supreme Court to unanimously propose to the President three potential justices for his consideration—each Justice must agree to each proposed nominee.
    • The President may accept or reject any such suggestion, but he shall not act until the unanimous Court has submitted the recommendation except as provided below.
    • If within 30 days of a vacancy the Justices cannot agree among the three proposed justices or otherwise fail to provide the President with the list of proposed nominees, the President may proceed accordingly.
    • If there is insufficient time in the sole and absolute discretion of the President to receive and consider the advice of the Justices, the President may proceed to nominate a person without waiting for the advice from the Justices.
    • The President is in no way bound to accept the recommended nominations of the Justices.

What say you?

Richard G. Kopf
Senior United States District Judge (NE)

27 thoughts on “Kopf: A Short Take on Selecting Supreme Court Justices

  1. norahc

    Judge,

    I believe you left out the important requirement that the nominee be an Admiral of the Great Navy of Nebraska.

    1. Richard Kopf

      norahc,

      He is far too busy guarding the shores of Omaha from the invading hordes of the unwashed from Council Bluffs, IA stealthily crossing the Missouri in inner tubes to kidnap Warren Buffett.

      In short, you have no sense of proportion. Some things are more important than others.

      All the best.

      RGK

    2. Skink

      Then there couldn’t be three nominees. What happens when we run out of admirals? Reduce the Court? Besides, the Admiral keeps falling off the boat and into cow pies.

  2. Skink

    Dear Rich, a couple things:

    1. What’s this “accordingly” of which you speak?
    2. Won’t people think the Court is a sorta country club or homeowners’ association? How will we explain things to the NYT?
    3. Can the statute override Article 2, section 2 and the requirement that appointments be with the “Advice and Consent of the Senate”?
    3. When will I be allowed to try another case?

    1. Richard Kopf

      Skink,

      The Court is a sorta of a Country Club anyway, but one that is newfangled. It admits Jews and Catholics and one Protestant whose sense of biology is odd.

      As for the rest of your questions or comments that’s precisely why we have THE Admiral. He is far too busy skewering the likes of you and me to dirty himself with silly Supreme Court disputes.*

      All the best.
      Rich

      * Trust me, once you put on the black dress the fun just begins and all the brilliant trial tactics that you lied about over drinks fades away in importance. Imagine: Mr. Justice Skink.

  3. CLS

    Judge, out of all the ideas I’ve seen tossed around in recent memory to “improve” the Supreme Court, I must admit I find this one the most interesting.

    The only issue I see is the media’s portrayal of the process. No doubt the Justices would get accused of selecting from what is referred to in these parts as a “Goo d Ol’ Boys Club.” Their selections would inevitably clash with the President’s. No one would “respect the legitimacy” of anyone’s picks.

    In sum, the biggest flaw is adding more drama to a process in a world with far too much for my tastes.

    1. Richard Kopf

      CLS,

      You are quite right. My modest proposal has huge holes in it. But if you think additional drama can be added to the cluster fuck we suffer under now, I respectfully suggest you are drinking too much moonshine. It’s a disaster that can’t be made worse.

      We judges know our colleagues and their strengths and weaknesses better than even the ABA. A non binding unanimous recommendation from sitting Justices of say three prospective nominees might really put pressure on the political branches to think differently about who they put up or attack as nominees for the Supreme Court. I don’t see the harm, and there might even be some good done.

      But what do I know? I sit on the the third tier toilet.

      All the best.

      Rich

      1. norahc

        “It’s a disaster that can’t be made worse.”

        That explains why I just heard 100 Senators say, “Hold my beer.”

  4. Alex Sarmiento

    Since the selection and election of Justices is the responsibility of the political branches, a political bloodbath was likely to happen at some point is not? Calling for more interference from the SC in the process reflects a distrust on the political class and injects a lower expectation for the political branches to do their job properly. Who knows, that kind of measure might encourage even more partizan politicization of the SC

  5. John Barleycorn

    I say see the State of Alaska Constitution Article IV if you would like to further refine and expand your argument.

      1. John Barleycorn

        When you figure out a way to get a Judicial Council of sorts incorporated with Judicial Term Limits via constitutional amendment across the finish line and become the first chair as it will require that only CDLs can be chairs of the council.

        Heck, I will even thrown in a petrified woolly mammoth testicle that you can attach to the end of ossik for a gavel.

        History is out there for those who make it esteemed one…

  6. Scarlet Pimpernel

    No. There is an saying “Never wrestle with pigs. You both get dirty and the pig likes it”.

    If you agree that currently, the selecting of Supreme Court Justices is a mess, then I am not certain that having the Court dive head first into the wallow would be a good idea. No matter how much thought and good intentions were put into cultivating the picks, once they were cast out they would be trampled underfoot as Twitter and news outlets rushed to condemn the Court for only recommending picks with two legs.

  7. Jay

    Similar to this, in my county the Public Defender is chosen by permitting the administrative judge for our district of the state to choose a panel of 3 lawyers who cannot be prosecutors to vet those who apply and then give their recommendations and those they choose to the county commissioners, who pick from that.

    As a result, we have always had the toughest public defender in the state heading the office who takes shit from absolutely no one. I could see a world where the supremes pick a panel of senior judges to vet candidates and the president has to pick from that. Senators pick senior judges- they do the vetting and senators pick from that and present to the president. Seems like that would work.

  8. Samuel McCord Sullivan

    No! No! No! A thousand times no. Lawyers, particularly Washington lawyers (ABA, Federalist Society, etc.) already have to much say over Supreme Court nominations. That influence should not be increased by codifying it. There is nothing wrong with the current nomination process. All the men and women nominated have been qualified and, during their term of office, have not disgraced the Supreme Court or the judicial system.

    The problem is not in the nomination process but in the confirmation process. It partially rests with the Senate but primarily belongs to the pressure groups who view the court as a super legislature and who want the court to order the populace to do their bidding and who will go to any length to get their way.

    1. Richard Kopf

      Samuel,

      With respect to your important point–that the cause of the dysfunction “primarily belongs to the pressure groups who view the court as a super legislature”–I wish to turn your argument against you.

      Won’t you agree that the Justices when speaking unanimously (emphasis on unanimous) gut the bad guys of which you speak?

      However, I do love the “No! No! No! A thousand times no” intro., of your comment.* Pungent!

      All the best.

      RGK

      PS But, just for fun, think about the Fed. Soc. folk going full batshit when all eight Justices agree that Pamela Karlan should be one of the three potential nominees the President should consider. I would dare the Fed. Soc. folk to attack her when her putative colleagues say she’s great. And, don’t get me started on the wonderfully devious ways the American Constitution Society liberals could be spanked as they sit in the corner and whine if, for example, Judge Don Willett was among the three the Justices all agreed would be dandy too. (I think he is funnier than Karlan, by the way.)

      1. Samuel McCord Sullivan

        Whenever someone asks me a question beginning with “wouldn’t you agree” I think they are trying to put words in my mouth. Also, my instinct is to immediately disagree and in this case I do disagree. By recommending candidates for nomination, the Supreme Court becomes just another of the bad guys that I blame for the situation. At its best the Supreme Court is an unbiased and neutral arbitrator. By recommending members to its exclusive club the Court will be immersing itself in the mud pit of politics.

  9. MelK

    So… what laws currently prevent the President from soliciting advice on judicial nominations from … pretty much whoever he chooses to consult? What laws prevent the justices from providing unsolicited advice?

    Admittedly, there is the example of the ABA, but …

  10. Ray

    The President has the constitutional authority, and obligation, to nominate the justices. Its one of the most important functions of the office. He should pick jurists with life experience (which means they should in most cases be over sixty) and with a great deal of legal experience (which means that in most cases they should be over sixty). The confirmation process should be no more than 45 minutes to an hour before the Senate judiciary committee, and a confirmation vote before the entire senate should follow shortly thereafter. Absent something extraordinary, the Senate should confirm. When the President selects his nominee, that person should be someone with such deep wisdom and humility that they know when it becomes time to retire, and like a champion athlete gracefully leaves the game while still on top of their game (and not simply waits until they die of advanced old age). No one should be there beyond age 80. If you get on at 65 and stay until 80, then you have had a fifteen year run–which is more than your fair share of time at bat. Now its time to give others their opportunity. Go teach at a prestigious law school and/or write). If you are the political party out of power, its only for a limited time; the other party will soon be out of power and you will need their cooperation–so don’t play games obstructing judicial selections. The country sees the gamesmanship, doesn’t like it, and it hurts the institution. So, on the one hand I like your suggestions, but on the other, I don’t think we need a formal law–we just need rational leadership.

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