Mier, then Alito: A better way of appointing Supreme Court members?

[PeterGustafsson]

Hi!


The Miers debacle got me thinking if there was any better way of doing it. (Now I am playing armchair-founding father, a favorite pastime of mine.)

I think that Miers should not have been subjected to hearings at all - she did not have the experience and legal scholarship resume that should, IMO, be necessary to be even long-listed. She, in the end, did not even have the support of the president´s core constituency, making the whole thing an exercise in futility.

Now Alito is being considered, and one can ask of the executive branch: Do you think that Alito is inherently better than Miers? If so, why was he not put forth in the 1st place? If not, what do you base you assessment on? No frank and honest answer will reflect good on anyone.

There has got to be a better way. Presently, there is a choice between Person A and maybe-someone-else-waiting-in-the-wings, not a choice between Person A and person B. Without further ado, I present the following suggestion:

Divide the SCOTUS appointment process into 3 parts:
1. Establishing a list of eligble candidates
2. Establishing a short list
3. Selection from the short list

Eligible candidates should be those who have become head judges of courts of appellates, or state supreme courts, or circuit courts. Those candidates can, if they wish, sponsor others to eligble list. However, only those American citizens which either currently are professors of law at an American University or have argued at least 20 cases before the SCOTUS can be sponsored in. Every year, judges with sponsoring rights will sign one name of a sponsored person on a paper, enclose it in a plain envelope, enclose that envelope in an envelope signed with their name and send that to the SCOTUS. There, the SCOTUS will open all outer envelopes, pour the inner envelopes into a heap, and then start opening the inner envelopes. They will then compile a list of sponsored candidates, and strike from the list those that do not fit the criterias listed above. A sponsoring judge that for some reason does not want to add to the list must have a blank paper inside the inner envelope. No sponsoring judge may at any point disclose who he has sponsored, nor motivate his thinking in this matter. Sponsoring judges retain the duty to consider for sponsoring during their entire active duty as judge at a sponsoring level. All those on the eligble list stay on it until the die, are impeached, or a convicted of a crime. It is not, however, possible to ask to be stricken from the list. The names on the eligble list are maintained in the open, for everyone to see.

Once a seat in the SCOTUS is open, one of the remaining 8 SCOTUS judges shall prepare a short list of exactly 3 candidates from the eligble list. First, the most junior - in time served - of the remaining SCOTUS judges is removed from consideration. Of the remaining 7, the one who has had the highest percentage of being on the losing side in SCOTUS votes during his entire career will be the one that prepares the short list. He should do so within a month. He must present his short list without any motivations, only three names, to the public. He may not ask any candidates on the eligble list whether they want to be on the short list.

The three candidates are called to the Senate Judicial committee, where its members and the President must question them in open hearings. After the hearings, the President will annonce which one of these three that he strikes from the list. Of the remaining two, both chambers of congress will vote which will take the open SCOTUS seat. If the vote is a tie, the dean - in served years - will decide. If several congressional members are tied for the title of dean and it is still a tie among them, the oldest of the deans will hold the deciding vote.


This system has several advantages:
1. The eligble list system ensures that people with no paper trail, and people who are grossly underqualified, will not enter the process.
2. For each year´s additions to the eligble list, all sorts of political groups will act as unpaid vetters, and dig up whatever there is of interest about possible candidates. No more stealth candidates!
3. People who are not trained/smart enough to parse legal texts and precedent excellently well will not make the short list - the selecting SCOTUS judge will not want to work with them, and peer pressure from his colleagues will work in the same direction.
4. Compiling of the short list will go reasonably fast - those who could conceivably be in charge of compiling it will know that well beforehand, and will have given the matter considerable thought. The will also have ahead warning before when to do it, unless a SCOTUS member dies unexpectedly.
5. Since a member of the SCOTUS minority will compile the short list, there will be a self-centering mechanism built in. Unless the same party holds both congress and white house for a very long and uniterrupted time, they can not get a lock on the SCOTUS. If one party holds both those branches, at first the SCOTUS will tend to move against that party´s legal views before a very slow swing towards their side starts. However, that will take decades. If the power changes hands a shorter intervals, the court will tend to go center, and produce a lot of 5-4 votes.
6. It will be an excellent lesson in humility for the president to be forced to choose from a short and open list of possibilities, all of them usually unpalatable to him. Considering the usual type of people who strive for presidency, this will be a good training in character. (Consider Clinton choosing among the candidates deemed most by Rehnquist! Or Bush choosing among those submitted by Ruth Bader Ginsburg!)
7. The whole selection process will go relatively fast - #2 ensures that all issues are in the open. Furthermore, there is no rinse&repeat in it which drags out things.

What do you think?


Have a nice time!

Peter Gustafsson

[YankeeRebel]

President Clinton's method of selecting a Supreme Court nominee worked very well. He knew from the outset that he was was facing a hostile republican senate who could defeat his nomination at will. Clinton created a short list of possible nominees and gave it to Orrin Hatch, who was the republican chairman of the senate judiciary committee. Clinton asked Hatch to pick nominees from that list who would be "acceptable" to the republican majority who had to confirm them. When Clinton got Hatch's list of "acceptable" nominees back, he formally nominated one from that list. The result was Clinton's nominee (Ruth Bader-Ginsburg) was approved by the senate without a confirmation battle.

Clinton actually received "advice and consent" from the senate. It worked extremely well for Clinton, and it could work extremely well for future presidents. Unfortunately, some presidents prefer having a confirmation battle instead of nominating a person who is acceptable to both sides.

[PeterGustafsson]

Hi!

Originally Posted by YankeeRebel

President Clinton's method of selecting a Supreme Court nominee worked very well. He knew from the outset that he was was facing a hostile republican senate who could defeat his nomination at will. Clinton created a short list of possible nominees and gave it to Orrin Hatch, who was the republican chairman of the senate judiciary committee. Clinton asked Hatch to pick nominees from that list who would be "acceptable" to the republican majority who had to confirm them. When Clinton got Hatch's list of "acceptable" nominees back, he formally nominated one from that list. The result was Clinton's nominee (Ruth Bader-Ginsburg) was approved by the senate without a confirmation battle.

Clinton actually received "advice and consent" from the senate. It worked extremely well for Clinton, and it could work extremely well for future presidents. Unfortunately, some presidents prefer having a confirmation battle instead of nominating a person who is acceptable to both sides.

Well, then Clinton used a method somewhat similar to what I outlined. The problem with it is that a hostile senate can answer "no one" when asked "which of these are acceptable to you?" Unless the President then chooses to bend over backwards, one gets a logjam.

The system that I proposed would also prevent a confirmation battle - everyone would know what the alternatives are, and that there will be no other. The alternatives are likely to be fairly similar also, which further limits scope for fights.


Have a nice time!

Peter Gustafsson

[dcmdale]

I suspect that the Miers nomination met Bush's political goals. Many viewed this seat as a "designated woman's seat. If Miers was confirmed, Bush got a loyalist on the bench in the mold of Clarence Thomas. If rejected, he had greater freedom to nominate someone like Alito.

On the other hand, I would rather see politics run its course that to restrict the ability to choose justices from outside the system. History indicates that when presidents choose justices to get certain ideologies, it only works out about 50% of the time anyway. Injecting fresh air into the court, however, has often been a good thing. Appointing a conservative to the court doesn't make a conservative justice. Would a liberal really want to exclude Earl Warren, a conservative governor of California with no judicial experience and even less of an legal record than Miers and appointed by the conservative Eisenhower, who became one of the most liberal activists in Supreme Court history?

[PeterGustafsson]

Hi!

Originally Posted by dcmdale

Appointing a conservative to the court doesn't make a conservative justice. Would a liberal really want to exclude Earl Warren, a conservative governor of California with no judicial experience and even less of an legal record than Miers and appointed by the conservative Eisenhower, who became one of the most liberal activists in Supreme Court history?

Hindsight is 20/20. However, this is politics, not history.


Have a nice time!

Peter Gustafsson

[Slim]

Some would argue that offering Miers was a dufus move. A few would go so far as to argue it was a brilliant move to position another more real choice, which now is Alito. Either way, it's all politics and part of our democratic process...and it's a beautiful thing. And I think it works pretty well.

What you have done with your scheme is remove the power of selecting nomimees from the president. This is clearly your intent, but that's not the way things were designed. The single most important responsibility of a president is to offer choices for nomination to the supreme court. His candidate will usually be chosen to reflect the values and beliefs of the president, who was himself chosen via open elections. So, indirectly the values of the nominee will most likely reflect some amount of the popular values and beliefs, which are subject to change over each 4 year term. To suggest that the sitting justices be the ones to select who can join their club is silly.

Our system here may not be perfect, but to mess with one part to the degree you propose would have enourmous effects throughout.

I do find it interesting that a left-leaning resident of a foriegn socialist monarchy feels compelled to suggest that our selection process of supreme court justices is broken and needs to be fixed. How about you test it over in Sweden and let us know how it works.

[Philistine]

I don't know--the process seems to be working pretty well.

An unqualified person was nominated--it became clear that such person would not be confirmed by the Senate, and the nomination was withdrawn--before the hearings started.

A qualified person was nominated in turn, and will likely be confirmed shortly.

Your suggestion, while not necessarily a bad one, is quite a bit more detailed than the current constitutional requirement--and I just don't see any great groundswell of opposition in the US to the process of appointing a Supreme Court Justice.

It's esentially a political process, so giving the President the right to choose, with a veto power in the Senate doesn't really seem to give most Americans too much pause.

About the Miers nomination--the system worked. It weeded out an unqualified candidate.

--Philistine

[wrdbrn]

Peter Gustafsson's "idea" is valid. Without calling a constitutional convention to take on the task; the vast majority of politicians know how to implement a network of all information they receive and tap it when necessary. I.e., YankeeRebel's acknowledgement of how we think Clinton came up with his plan. Even the "talking heads" of various political commentary, audio - video and print -- think that all Presidents or would be Presidents have these contact list; EXCEPT possibly for our current cowboy. This very caviler attitude about "the general public won't notice" was brought sharply into focus with Harriett Miers. It was abhorrent that the DNC did not step in and very considerately rescue Ms. Meirs from a blatant set up. **rolls eyes**. The US has plenty of women sitting on federal benches across the country. It took me a mere aging mom about 15 minutes to find a list and read a short bio on just women federal judges whose last names start with A. I shutter to think how much information could be tapped by anyone who actually needed to make a recommendation.

NOTE: tune into to Alito confirmation hearings and actually listen to some of the "conversation". Alito is very very polished. He has willingly answered constitutionality questions on some issue but not others... that begs the question - does he have something to hide.

Here is the question, which everyone skirts. Does or does not the US Constitution protect a persons right to privacy with lawyers, accountants, doctors, spouses, educators etc..?

To that end... here is the site and brief sampling of women who might have been considered instead of Meirs. In the end you have to put Harriet Meirs on the women of steel list just for enduring such humiliation at the hands of the government to which she dedicated a lifetime of service.

http://www.fjc.gov/public/home.nsf/hisj

Altonaga, Cecilia M.
Alvarez, Micaela
Ambrose, Donetta W.
Amon, Carol Bagley
Armijo, M. Christina
Armstrong, Saundra Brown
Arterton, Janet Bond
Atlas, Nancy Friedman

[Slim]

Originally Posted by wrdbrn

Peter Gustafsson's "idea" is valid. Without calling a constitutional convention to take on the task; the vast majority of politicians know how to implement a network of all information they receive and tap it when necessary. I.e., YankeeRebel's acknowledgement of how we think Clinton came up with his plan. Even the "talking heads" of various political commentary, audio - video and print -- think that all Presidents or would be Presidents have these contact list; EXCEPT possibly for our current cowboy. This very caviler attitude about "the general public won't notice" was brought sharply into focus with Harriett Miers. It was abhorrent that the DNC did not step in and very considerately rescue Ms. Meirs from a blatant set up. **rolls eyes**. The US has plenty of women sitting on federal benches across the country. It took me a mere aging mom about 15 minutes to find a list and read a short bio on just women federal judges whose last names start with A. I shutter to think how much information could be tapped by anyone who actually needed to make a recommendation.

NOTE: tune into to Alito confirmation hearings and actually listen to some of the "conversation". Alito is very very polished. He has willingly answered constitutionality questions on some issue but not others... that begs the question - does he have something to hide.

Here is the question, which everyone skirts. Does or does not the US Constitution protect a persons right to privacy with lawyers, accountants, doctors, spouses, educators etc..?

To that end... here is the site and brief sampling of women who might have been considered instead of Meirs. In the end you have to put Harriet Meirs on the women of steel list just for enduring such humiliation at the hands of the government to which she dedicated a lifetime of service.

http://www.fjc.gov/public/home.nsf/hisj

Altonaga, Cecilia M.
Alvarez, Micaela
Ambrose, Donetta W.
Amon, Carol Bagley
Armijo, M. Christina
Armstrong, Saundra Brown
Arterton, Janet Bond
Atlas, Nancy Friedman

Clearly, nothing but sour grapes here. Change the system because you didnt get what you wanted, a liberal female. There were several women who were condidered for the position, but constant threats of philibusters prevented them from contending for the position. So, rather than really upset things, the president went another directions rather than go "nuclear" as some like to say.

[wrdbrn]

Originally Posted by Slim

To have a debate, you need people willing to put forth opposing views..

Why is any opposing view labeled sour grapes?

[esskreemr]

Originally Posted by Slim

Clearly, nothing but sour grapes here. Change the system because you didnt get what you wanted, a liberal female. There were several women who were condidered for the position, but constant threats of philibusters prevented them from contending for the position.

I don't think that anyone expected the President to appoint a liberal female. Personally, I'd prefer a balanced court. I also think that the SC should have a 'retirement' age limit. The longevity of the Court is a inherent part of its structure and very important. That being said, it may not be much longer (20-30) years when we see Supremies in their 90's. The Supreme Court does indeed need to be somewhat removed from current popular passions, but at what point does the removal become detrimental to a progressing society?

So, rather than really upset things, the president went another directions rather than go "nuclear" as some like to say.

He nominated a cronie. I'm not sure what circumstances would have to have surfaced for Miers to even have stood a chance of being appointed. She was a trojan horse, a ruse.

I trully hope that the Dems put up a longer and louder fight this time. They have a tendency of late to roll over when faced with tough issues. Let's see if the Repubs have the balls to nuke the nuclear option. They've shot themselves in the *** before with policy changes like this.

[Slim]

Originally Posted by wrdbrn

Why is any opposing view labeled sour grapes?

Any opposing view isnt. Your view as expressed here, in my opinion, clearly has an agenda (get a woman on the bench). It didnt happen, so you would prefer to change the system. The the same system, mind you, that seemed to be working ok for you when Ginsburg was appointed.

Cant get much more sour than that.

[Philistine]

Originally Posted by esskreemr

{snip} That being said, it may not be much longer (20-30) years when we see Supremies in their 90's.{snip}

Stevens will be 86 in April. The next oldest (other than O'Connor) is Ginsberg. Who will be 73 in March.

He nominated a cronie. I'm not sure what circumstances would have to have surfaced for Miers to even have stood a chance of being appointed. She was a trojan horse, a ruse.{snip}

Although possible, I doubt it. My take is Bush honestly wanted Miers, and was surprised at the furor he got from his own party.

I trully hope that the Dems put up a longer and louder fight this time. They have a tendency of late to roll over when faced with tough issues. Let's see if the Repubs have the balls to nuke the nuclear option. They've shot themselves in the *** before with policy changes like this.

What's wrong with Alito?

--Philistine

[wrdbrn]

First let's refresh our memories... for those that are not awarye of the "Ginsburg President":

http://en.wikipedia.org/wiki/Ruth_Ba...g_Precedent.22
(reffering to the John Roberts nomination) Republicans used an argument known as the "Ginsburg Precedent", which centered on Ginsburg's confirmation hearings. In those hearings, she did not answer some questions involving matters such as abortion, gay rights, separation of church and state, rights of the disabled, and so on. Only one witness was allowed to testify "against" Ginsburg at her confirmation hearings, and the hearings only lasted four days. They also pointed out then-Judiciary Committee Chairman Joe Biden told her to not answer questions she did not feel comfortable answering.

http://www.savethecourt.org/site/c.m...Propaganda.htm
Barring such substantive questions altogether would mean effectively preventing senators from evaluating a nominee's approach to the Constitution and laws based on a nominee's answers- certainly unacceptable regarding a nominee to a lifetime position on our nation's highest court. After all, no one credibly contends that a nominee should come to the Court with no preconceptions about the law. As Chief Justice Rehnquist once wrote, "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa (blank slate) in the area of constitutional adjudication would be evidence of a lack of qualification, not lack of bias."

Again I ask, when specific issues come up what keeps a SCOTUS nominee from taking the panel "to school" and saying something like:."Senator,I hardly have before me today all the information I need however; the question you are asking is about cases that have been held to Section XYZ of the constitution. and precidents set forth in motions ... 1 2 and 3 to note a just a few.. therefore the court rightly decided based on the information weighed against the arguments and the Constitution itself. As a SCOTUS I would have the responsibility of using the same to make any decision."

Now really, all personalities and gender aside... is that really too much to ask ..? Of course that would mean that Alito or anyone else would have to actually admit to not only understanding the law but also handing down decisions that were crystal clear.

additional reading: http://www.law.umkc.edu/faculty/proj...teconfirm.html
kudos to the University of Missouri Kansas City... nicely presented

[esskreemr]

Originally Posted by Philistine

What's wrong with Alito?

--Philistine

Judge Alito is definitely qualified as far as experience goes. He, however, has consistently twisted precedence or ignored it flat out. He is also a staunch authoritarian who would have no qualms in judging for a police state where personal freedom is not just trimmed a little, but ignored completly. He has voiced in many dissensions and rulings his desire to continually chip away at the separation of church and state.

On a personal note he is anti-abortion, federalist, contra environment protection, and pro discrimination (as long as the discrimination isn't based on religion).

Based on his record compared with Edward's records, I would willingly vote (assuming I had the power) 3 Edward's onto the Supreme Court before allowing one of Alito's ilk to occupy the position for, what, 20 or 30 years.

[Philistine]

Originally Posted by esskreemr

{snip} He, however, has consistently twisted precedence or ignored it flat out.

When?

He is also a staunch authoritarian who would have no qualms in judging for a police state where personal freedom is not just trimmed a little, but ignored completly.

This seems a bit histrionic. What is your basis for saying this?

He has voiced in many dissensions and rulings his desire to continually chip away at the separation of church and state.

Again--where? From Wiki is this list of First Amendment religious cases he has been involved in as a judge:

A majority opinion in Child Evangelism Fellowship of N.J., Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004) involving the Establishment Clause. The court found that a school district could not preclude an evangelical group from distributing its newsletters where the school district permitted other private groups to do the same.

A majority opinion in Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004), involving the Free Exercise Clause. The case involved a Native American's ritual that used black bears. The state denied the plaintiff an exemption to a $200/year exotic wildlife dealer permit to keep the bears under the state's Game and Wildlife Code. The court found that the code invoked strict scrutiny. The majority found the code was "substantially" under-inclusive and did not satisfy strict scrutiny.

A majority opinion [21] in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), addressing the circumstances under which a government-sponsored holiday display may or may not contain religious symbols. The case held that a holiday display consisting solely of religious symbols was impermissible, but a mixed display including both secular and religious symbols was permissible if balanced in a generally secular context. The decision relied on County of Allegheny v. ACLU - a previous Supreme Court decision that had permitted such mixed displays. The ACLU had argued that a previous city display that was ruled unconstitutional because it lacked secular symbols colored the purpose of the new display.

A dissenting opinion in C.H. v. Oliva et al. (3rd Cir., 2000)[22] arguing that the removal and subsequent replacement in "a less conspicuous spot" of a kindergartener's religious themed poster was, at least potentially, a violation of his right to Free Expression

A unanimous opinion in Police v. City of Newark, 1999; [23] allowing Muslim police officers in Newark to keep their beards because "the Department makes exemptions from its policy for secular reasons and has not offered any substantial justification for refusing to provide similar treatment for officers who are required to wear beards for religious reasons."

Doesn't seem too destructive.

On a personal note he is anti-abortion,

As is roughly half of the country, and the man who nominated him....

federalist

What's wrong with that?

contra environment protection, and pro discrimination (as long as the discrimination isn't based on religion)

I haven't seen any indication that either of these is true. Do you have particular cases in mind?

Based on his record compared with Edward's records, I would willingly vote (assuming I had the power) 3 Edward's onto the Supreme Court before allowing on of Alito's ilke to occupy the position for, what, 20 or 30 years.

To me, Edwards has the same lack of qualifications problem as Miers--though at least he's tried more cases.

Everything I've heard about Alito from those practicing in front of him has been positive--and I haven't seen any wacky decisions from him--ones I disagree with, sure, but nothing nutty.

I'm interested if you have any specific decisions that you think are particularly problematic?

--Philistine