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SUPREME COURT REFORM 101: Class 3, the “balanced bench,” or the 5-5-5 plan, first outlined in @voxdotcom. You might know it because @petebuttigieg discussed it quite a bit during the Dem primary last year. 1/ https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n1012491
The idea: expand size of the Court to 15. Require there be 5 from D-list & 5 from R-list. Those 10 pick the other 5 from the courts of appeals to serve for one year. No agreement and the Court can’t sit that year. Me & @danepps explain @yaleljournal: 2/ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3288958
The good: It reduces the power & import of any individual nomination, so there aren’t death-matches over and over again. It could turn down the temperature. (Also good b/c Congress can focus on other things). @voxdotcom 3/ https://www.vox.com/the-big-idea/2018/9/6/17827786/kavanaugh-vote-supreme-court-packing
It reduces power of individual justices, so advocates aren’t always pitching arguments to the idiosyncratic views of a Justice Kennedy, for example. See @ishapiro on the “Kennedy Brief” 4/ https://www.cato.org/publications/commentary/justice-kennedy-once-future-swing-vote
It recognizes partisanship is relevant, but seeks to force justices to find compromises on personnel and indirectly on outcomes. Won’t partisanship mean the Court will deadlock? Some might argue that’s a virtue. Court with less power serves democracy-values. 5/
Okay, but can they really agree? Note that the 4-4 court in OT 2016 had more consensus than in 70 years! h/t @adamliptak 6/ https://www.nytimes.com/2017/06/27/us/politics/supreme-court-term-consensus.html
Isn’t it naïve to say they’ll agree on 5 picks? No moderates exist! Note: they don’t have to pick 5, they could just agree to one compromise pick. Might be idiosyncratic judge: left on some topics, right on others. Maybe judges will also moderate to get picked. Hard to know. 7/
. @jbouie notes this doesn’t solve D’s desire for Court that'll uphold D policies. True. 5-5-5 court might uphold D policies or not. But maybe R’s could eventually live with it – less likely to have retaliation if R’s win Congress & Presidency. 8/ https://www.nytimes.com/2019/06/06/opinion/buttigieg-warren-supreme-court.html
But R’s already have 6 justices (assuming confirmation of ACB), so 5-5-5 makes no sense. Sure. Proposal was developed before all this, so it would have to be reformed to be 6-6-5, or maybe 6-5-6 has a better ring to it. Not as elegant, but it still works. 9/
Constitutionality: Can justices appoint judges as temporary justices? Judges often sit by designation on other courts, and this would be similar. But if you’re worried, easy fix: appoint all court of appeals judges as associate justices. 10/ https://takecareblog.com/blog/the-constitutionality-of-the-5-5-5-supreme-court-plan
Are partisan balance requirements constitutional? Many federal agencies & commissions have them. Most don’t specify party, but instead limit the number from one party. This could mean shenanigans, like switching affiliation, so isn’t likely workable for Scotus. 11/
One solve is Pres. picking from a list prepared by Sen. maj/min leaders (which would also allow for third party/no party judges). A commission, for example, recommends names for judges for DC. Constitutional? Nothing is bulletproof, but there’s a case 12/
Isn’t this too complicated? More than expansion, sure. But not more than details of term limits (see yesterday’s thread). Also: our political system often yields complex policies b/c of need for compromise, rather than simple (even if better). So…maybe that’s a feature? 13/
Whether you like this plan or not, @petebuttigieg brought important attention to court reform last year (& I say that not just because he picked up my and @danepps idea). If you like this series, please follow & r/t. Tomorrow: we tackle the lottery or panel approach. 14/end
