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President Donald Trump has appointed two Supreme Court justices for just 19 months.
Senate Majority Leader Mitch McConnell said after confirming Brett Kavanaugh that Trump may have the opportunity to make a third appointment during a term. At the end of a possible second term of Trump, he could choose a majority of the Supreme Court.
Although the Supreme Court is not a representative body, judges in this jurisdiction have strong, well developed, and very different philosophies and judicial approaches to constitutional and legislative interpretation. Presidents openly admit that they make their appointments significantly based on these factors. In the current system of appointing Supreme Court judges, electors in certain elections have an influence two or three times greater on Supreme Court appointments than those of others.
This is anomalous and unfair because voters in an election generally have the same opportunity to elect government officials as those in another election. But as a congressional statute sets the size of the court to nine, some presidents will have the opportunity to appoint more judges to the Supreme Court than others, depending on the death or resignation. We think that goes backwards: each president should have an equal number of appointments per elected term and the size of the court should fluctuate over time as vacancies occur.
Correcting this phenomenon does not require a change in the Constitution. We are lawyers who have written in many areas, including constitutional law. We believe that Congress could pass a law providing for a president to be appointed to the Supreme Court by a four-year term.
The Constitution does not dictate the size of the Supreme Court; Congress does.
This new system would mean that the number of appointments received by a president would no longer fluctuate depending on the hazards of death and vacations on the bench of judges.
Unequal terms
Even after states ratified the 22nd amendment to limit two-term presidents in 1951, some presidents exercised more influence over the court than others.
From 1952 to 1992, we calculated that on average the presidents appointed two Supreme Court justices every four years, which had been successfully confirmed. From 1992 to 2016, this number fell to one per mandate.
The court usually includes judges appointed by four or five different presidents and confirmed by six or seven different senates, so this reflects the country's political values over a long period. In addition, the court often makes decisions based on constitutional, legislative, and regulatory texts, historical sources, and precedents that reflect the accumulated wisdom of the law over an even longer period of time.
The current system is not working as planned, perhaps because judges are appointed younger while life expectancy is increasing. As a result, some presidents can exert extremely disproportionate influence on Supreme Court appointments for decades after their term expires.
The timing of presidents appointing Supreme Court judges depends on when a judge dies or decides to retire. A Congress statute currently sets the number of judges to nine. Congress could change that because, under the Constitution, it regulates the size of the court.
From 1791 to 1807, the Supreme Court had only six judges. A seventh was added in 1807, an eighth and a ninth were added in 1837 and a tenth in 1866.
Then, in 1869, the Congress passed a law reducing the number to nine. At that time, a 50-year-old man appointed to the Supreme Court had only a life expectancy of 71 years. Today, judges often exercise until the age of 80 and the life expectancy of a 50-year-old man is 80 years old and one year old. 50-year-old woman, 83 years old.
A new path
According to our proposal, Congress could pass a law stipulating that a president would get two candidates, and only two candidates, to the Supreme Court by four-year term. If this candidate is rejected by the Senate, the President would continue to nominate until a candidate is confirmed. A death or resignation from the court would not entitle a president to appoint additional judges.
Some may wonder what happens when the Senate refuses to consider an appointment as it did with the appointment of Judge Merrick Garland by President Barack Obama to the Supreme Court.
Under our proposal, the Senate would have a legally binding obligation to confirm two candidates by presidential term.
Of course, the Senate could still make fun of any presidential candidate, as it did with Garland.
We doubt that this will happen. First, as part of our proposal, the president does not have to wait for the death or retirement of a judge for his appointment. Instead, the president controls the period. If the presidents designate the candidates within a few months of their election, we doubt that many senators will have the temerity to vote against the candidates for a period of four years. The argument in favor of postponing the confirmation that has emerged since the unsuccessful appointment of Garland was that the Senate controlled by the opposition party did not confirm the Supreme Court candidates in the US. year following the presidential election. Since presidents would have the right to run for office as soon as they take office, Merrick Garland's problem will probably never happen again.
But suppose the Senate simply refuses to consider the candidacy of a president, either in the year following the presidential election, or even before.
We suggest that Congress pass legislation requiring the Senate Judiciary Committee to hold hearings on any presidential candidate within two months. They would also be required to submit a roll-call vote within a reasonable time, for example four to six months after the appointment.
Failure to comply with these deadlines will result in automatic confirmation. Any senator could enforce those requirements.
Some might think that this approach impinges on the constitutional power of the Senate to make its own rules. We think it would be constitutional because it would give the Senate a fair opportunity to "advise and give consent", as required by the Constitution.
Otherwise, if the Senate does not meet these deadlines, the law could mimic the procedures prescribed by the budget reconciliation law and require the Senate to summon the candidate to a vote within a specified time and prohibit it from now on. candidates for the judiciary.
A bigger Supreme Court
If such a law had come into force in 1952, the size of the Supreme Court would have fluctuated between seven and 14 judges. Each presidential election would have had equal weight in determining the composition of the tribunal.
This system could reduce the incentive for judges to delay their resignation so that some presidents do not get a candidate, or in the Senate to block a candidate before the next president takes office. The controversy around some individual appointments may decrease.
Other researchers have described the current size of the court as too small, because it leads to too many decisions 5 to 4. These undermine the democratic legitimacy of the court, they say, suggesting that, rather than applying the law objectively, one and the same justice decides controversial issues for the country.
Many other remarkable tribunals are larger than ours. The Supreme Court of the United Kingdom, created in 2005, has 12 members. The highest court in the European Union has 28 members.
This is not to say that we view the Supreme Court as a representative or legislative body. We believe that judges should be constrained by texts. But within these limits, the judges exercise their judgment.
There is no good reason for some presidential elections to count two or three times more than others to determine how we are governed.
John Attanasio, a law specialist and author of "Politics and Capital: Auctioning the American Dream," is an associate writer.
E. Donald Elliott, Adjunct Professor of Law, Yale University
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