Supreme Court Reform: “Thermonuclear options”
We were talking about whether Supreme Court judges should be help in respect or not at lunch, and some people thought that it was good to have one part of government that was unelected and with life tenure. I’m not completely opposed to that idea, but I think the system of having nine lawyers, all having been required to pass consitutional law classes at liberal law schools and relying mainly on discussions with a few staffers just two years out of law schools (their clerks) is a bad idea, if we are to let them make policy on issues ranging from abortion to homosexuality to tax law to environmental regulation. Here are a few alternatives:
1. Elect the Supreme Court to six-year terms, three of them every two years, like senators, and with no requirement of a law degree. They would then have to justify themselves to voters and the 99.9% of us who aren’t lawyers would have a chance to put our policy desires into action. Also allow each judge 10 staffers, so lack of expertise in particular areas of the law or of policy wouldn’t matter.
2. Instead of appointing nine lawyers to the Supreme Court, appoint nine people who, like me, have PhDs in economics. If you’re making broad policy, leaving the details to be worked out by other people, you don’t need people who like lawyers have skills in argument and document-drafting. Instead, you need experts who are good at trading off costs and benefits, analyzing data, and eeing indirect consequences of laws– that is, economists. Plus, our training is less ideological and we’re more academic and less politically involved than lawyers.
3. Instead of appointing nine lawyers in mid-life, make the Supreme Court hereditary, with a retirement age of 60, but give the judges a staff of 10 lawyers each. Our current system has old people making decisions using youthful, inexperienced, advisors. My system would have a mix of young and old people making decisions using wise, experienced, advisors. It would make the Court more representative of America generally, since hereditary succession will produce more random results than choosing justices from the Bar. It will also appoint people who since youth have been prepared to assume their hereditary duties, instilled with a sense of duty and fairness, as opposed to appointing lawyers, cynical people who are trained in winning arguments regardless of morality or truth and who are used to winning battles for their clients and crushing everybody else.
While I’m on the subject of radical reform, might I suggest a milder option? It is now suggested that we adopt the “nuclear option” or “Byrd option” of eventually confirming any judicial nominee who can get the votes of a majority of senators, returning the old system we had before we adopted the requirement of needing 60% of senators in 2000. This would slowly reform the court system.
But that this is called the “nuclear option” shows people’s lack of imagination. How about the “thermonuclear option”: pass legislation to increase the size of the court to 21, so Bush can appoint 12 new justices?
That, of course, is court-packing, but calling it by that name is not the same as arguing against it. Roosevelt’s court-packing in the 1930’s was defeated because even Democrats were scared of Roosevelt’s vast power and his clear appetite for increasing it far beyond historical bounds. Bush certainly isn’t that scary to Republicans, and not, I think, even to Democrats. What would Bush do if the Supreme Court didn’t exist to strike down his legislation? Well, pretty much the same thing as he’s already been doing– the Supreme Court has not been striking down his legislative program. We might get laws like a ban on partial-birth abortion and more restrictions on pornography, but it’s nothing like Roosevelt’s radical innovations in trying to control every detail of the U.S. economy.