I would not want to see term limits on Supreme Court Justices, nor anything similar that guarantees more rotation. (I don't even want to adopt term limits on any officials; I think we've already got too many term limits. I would rather repeal the 22nd Amendment, and repeal the term limits on the Governors and state legislators who already have them.) But something does need to be done to
reform how we
select people for appointment to the Supreme Court. This idea:
I've had similar thoughts. One other solution could be to take the power away from POTUS and give it to the Senate. One plan I thought of was:
1) a shortlist of applicants are drawn up by some sort of council of judges after every other election cycle.
2) the senate, at the start of every other session, selects three picks by secret ballot (to reduce partisan nonsense) and by PR-STV (to ensure a broad diversity of views in each cohort, which would serve as judges for twelve years. (I considered every single session selection a new bench, but thought there would be too much turnover).
... would require a constitutional amendment. Anything like that deserves to have a great deal of discussion. Alan Dershowitz came up with this idea, in his book
Supreme Injustice; How the High Court Hijacked Election 2000 (and this would not require a constitutional amendment).
"The first step [in reforming how Supreme Court Justices are appointed] must be to distance the process from partisan politics and to demand that greatness be the major criterion for appointment to the high court, as it is in many other countries and as it has often been in the history of this nation. The Senate and President could begin by jointly appointing a nonpartisan commission to gather the names of the two dozen or so most distinguished lawyers and judges in the nation, assessed by peer review under the broadest criteria of greatness, without regard to party affiliation, race, gender, ideology, or other such factors. After a thorough investigation, this list would probably be pared down to about ten candidates. The President would be expected - though he could probably not be compelled - to pick a nominee from that pared-down list. ... Any name selected from the commission's list would carry a strong presumption of confirmability by the Senate." (Page 203.)
"If the president and the Senate refuse to take up this effort to depoliticize the process by which justices are nominated, then I believe the bar and the academy should step in. They should appoint a commission to appoint a nonpartisan list of the most qualified potential nominees based on criteria agreed on in advance. This would put pressure on the president and the Senate to look to similar criteria. ..." (Page 204.)
I find it a little funny that Dershowitz does not seem to know how to define "greatness" in a peson who deserves to be appointed to he Supreme Court. He reminds me of Justice Potter Stewart's famous quip that he was not going to try to define hardcore pornography, "but I know it when I see it." In Dershowitz's case, a "great" judge would simply be one who would not rule in favor of a presidential candidate that they like if they hear a case similar to
Bush v. Gore. But before he wrote the above sentences, he had already described the quality of "greatness" with some subtlety.
"Legal realists ... have long understood that the arguments put forward by courts to justify their decisions are often simply after-the-fact rationalizations of results reached for reasons they are unwilling to acknowledge publicly - reasons such as ideological, religious, or economic preferences. Lawyers are taught to argue both sides of every issue. Any good lawyer is capable of rationalizing virtually any conclusion he wishes to reach by plausible arguments." (Page 187.)
"Some judges, of course, do actually apply the law in a neutral manner, without regard to their personal preferences. Others deceive themselves into believing that the arguments they are offering are neutral - that is, not explicitly calculated to produce a desired outcome. As an experienced judge once told me, 'The judicial capacity to kid oneself is limitless, because judges want to - need to - persuade themselves that they are doing the right thing.' " (Page 188.)
At this point, Dershowitz seemed to have forgotten to say which judges are better - the ones who make decisions that are based on their own values, or the ones who make decisions neutrally, without imputing their own values. I think the answer ought to be obvious. The latter are the only ones who should be appointed to the Supreme Court.
"If justices are simply lawyers appointed for their political reliability,, then why should the public accept their decisions? For a court to have legitimacy, it must carry the moral authority of the ages and of a historical continuity with the past. It must display a commitment to precedent that constrains the incumbents even when they are strongly tempted to follow their own preferences. The public must be rightly convinced that the decision is a product not of the justices alone but of history, precedent, and law." (Page 202.)
Objectivity. That's what is needed.
