Should the USA Constitution be amended to have each POTUS nominate to SCOTUS 2 Justices per term for them to serve an 18 year term? Good compromise?

Question

This proposal from President Biden has the potential to turn down the heat on justice nominations as well as prevent the Senate from not hearing a nomination if they choose not to consider it. I believe President Biden's proposal also contains an age limit where the nominee must not be a certain age by the end of their term. I attached a Twitter survey just to give you an idea of how the Twitterverse (NOT AN ACCURATE SAMPLE OF ANGLOSPHERE CITIZENS BY FAR!!) responded.

Let me know what you think and to all of the internationals, I apologize again for another USA American political question. To be honest, I treasure your opinions more than Americans themselves given the tenor and structure of our politics and institutions. TY!!

Totally unrelated but is 9 a good number for a bench?

Should there be a binding code of ethics on gifts and recusals that is decided on by extetnal ombudsman or elected legislative personnel?

RavVid · Accepted Answer

First, thank you for your kind words to us internationalists, and as I am always interested in constitutions I will take up your invitation. Australia's constitution is a mash up of bits of the UK and US constitutions and we have a federal structure. We are probably more akin than other Commonwealth countries. We even took the names of houses of Parliament from you guys.

I think judicial activism is now a transnational problem - especially in the constitutional court & the highest court appeal.

It is particularly a problem when such a court chooses to address what it perceives to be a social ill and imposes judge made law. Laws are for the legislative branch to make, not the judicial, and in some cases it should be more directly the people making the decisions. We had a plebiscite on gay marriage which was a glorified non-binding opinion poll but left to legislature to legislate.

Roe vs Wade is a great bad example of judge made legislation in my view. My own individual view is relaxed. I cannot have the problem so I abstain. But I strongly think it is not for proactive groups to fund court challenges so that judges have the option to legislate. Instead there should be a public debate on issues like this.

Of course Roe vs Wade was overturned and any judge made legislation, by an un-representative branch of gov't, can be reversed. It is just wrong for an un-representative branch of gov't to legislate.

I take your proposal as being aimed at preventing SCOTUS being stacked by the executive to achieve political goals. A worthy goal. It is not by any means limited by to the US; it is just more apparent and open in the US. Make no mistake Courts are stacked in my country but it is just less obviously done. You can take some consolation in that you know it is being done.

Your sidebar on size is an easy answer. Our SCOTUS equiv ( the High Court to distinguish from state Supreme courts) has 13 Chief Justices who have a mandatory retirement age of 70. The number of Justices needed is going to be determined by the case load the High Court does. Our High court is busier than your SCOTUS because of more appeals to it.

I am not a big fan of mandatory retirement. Dementia can happen earlier than 70 or not at all. Overall I don't think it is a big deal.

Our judges are never elected at any level. The thinking being this makes it a political position when it shouldn't be. Judicial activism makes this a lie of course. Replacement is by our Prime Minister selecting from a list of names produced by a commission. Quite obviously politically compatible judges are more likely to get the guernsey. It is moderated by the Leader of the Opposition approving the selected Judge. The only power the Leader of the Opposition would have is to make the selection controversial.

There is reluctance to make Judicial appointments controversial. There is no concept of parliamentary review hearing as there is in the US. IT IS A LOT MORE HIDDEN. But there is a force for conservatism in this in.

Judges can be removed by a vote by both Houses of Parliament which is a lot easier than impeachment but is basically the same with out the show trial aspects. The trial nature in my view is a sham because the vote is already stitched up beforehand.

Again this is a force for co nservatism. Hasn't been done yet but the threat is always there and it is more bang you're dead. Probably both our countries would be improved by sacking an activist judge.

You could try this approach. Appointments to Scotus being equally proposed by your President, the Leader of the House and President of the Senate and requiring endorsement by all three. Removal of a judge becoming simply a Yes vote by the house of Reps and Senate and justified by Judicial legislation. Move the hearings to the back end instead of the front end in other words. No real difference just a lot quicker and more effective.

I don't know if 18 year terms would be constitutional but I guess if a Judge swore to resign on a particular date there would be some compulsion to do so.

With POTUS nominating 2 each term, a two term President would nominate almost 50% of SCOTUS. Are the congressional hearings still a thing in this system? I can see this as leading to a politically more balanced court.

Inherently the problem is judges legislating and with the Legislature usually not able to do anything about it. I think it can only be addressed by Legislature sacking Judges who legislate. I think that is a political discourse both our countries should have. The power exists already and just has to be used.

exitseven · Accepted Answer

I think that the current rules introduce a bit of chance into the government. Justice Scalia died unexpectedly but was replaced by Neil Gorsuch by President Trump. Ruth Bader Ginsburg however knew she was suffering with cancer and could have retired while Obama was president and He would have appointed a liberal to the bench, Instead she remained on the court and died in 2018 when Donald Trump was president. He appointed justice Cavanaugh to replace her. She gambled and she lost.

Caroline91 · Accepted Answer

18 years is still plenty of time to do a lot of damage. And having each president appoint 2 justices could still load the court in one direction or the other, depending on how many times a certain party holds the White House. I don't know the answer, but we, as a nation, certainly need to come up with one.

MisterWack · Answer

18 yrs….

I just don’t think that is a good idea and allowing 2 justices per administration will lead to partisan hacks more than a govt body serving the US people well.

Joe Biden appointed a moderate which has voted with the extreme right on decisions which I think was the best move (the appointing of a non partisan justice, not the decisions ruled)

I think we should have guidelines and a system of removing a justice if they truly can’t rule based on Constitutional Law and the Law Books on record / legislation on books instead of putting party & religion & family as influences into their unjust rulings. Just a thought.

Juxtapose · Answer

I think it's important for them to not worry about getting back into their position of power so that's why they have it for life.

NathanDavis · Answer

it only takes one term to do damage...  the problem is that they're still bipartisan

Dargil · Answer

Why? You don't like Constitutional decisions?

BarryLiverstone · Answer

Nope

gorydetails · Answer

Nope.

Should the USA Constitution be amended to have each POTUS nominate to SCOTUS 2 Justices per term for them to serve an 18 year term? Good compromise?

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