The United States Supreme Court Nominating Process

Two years ago, Americans witnessed one of the most polarized confirmations in the United States Supreme Court’s history.  For many, Judge Neil Gorsuch’s nomination, Senate hearing, and eventual confirmation in April 2017 resulted in bitter resentment.  This confirmation, combined with President Obama’s nomination, stonewalling judge Merrick Garland two years earlier in March of 2016 by Senate Majority Leader Mitch McConnell, who refused to allow judge Garland a hearing, has caused irrefutable damage.  At the time, McConnell’s reasoning was it was inappropriate to confirm a nominee for the U.S. Supreme Court in a year with a presidential election.  Now, McConnell has thrown that logic out the window and insists they must confirm President Trump’s nominee, Judge Amy Coney Barrett, before the Presidential election in November.  If approved, Judge Barrett would replace Justice Ruth Bader Ginsberg, who passed on September 18, 2020.  If it was inappropriate in 2016 to confirm a nominee seven months before a presidential election, how is it ok now to confirm a new judge?  There are only a few weeks before another presidential election?  

When the constitution was written and later ratified in 1791, there were no political parties.  Judges were to be impartial and dispense justice equally under the law.  It was impossible then for Founding Fathers to foresee the role radical partisanship would play in the future.  They could not have imagined how such polarization would affect the process of selecting judges for the U.S. Supreme Court.  Even the filling of openings for judges in the lower courts has become more political than ever before.  Many now believe the process is so damaged that reform is essential.  We must strive to remove, as much as possible, the radical political partisanship from the entire process.  So here are some thoughts outside the box on how to improve the process.

• When there is a vacancy on the U.S. Supreme Court, a committee consisting of one judge from every appellate court of the U.S. Courts of Appeal will provide the President of the United States with three possible competent nominees to fill the Supreme Court vacancy. 

• The FBI will then complete a thorough investigation of all three of the candidates within six months of their nominations.

• The President will then review the FBI’s report on each nominee and then interview each candidate. The President selects one of the candidates to be the next nominee to the United States Supreme Court.

• A hearing will then be conducted by the Senate no later than 30 days following the President’s selection of a nominee.  The leader of the Senate cannot delay this hearing as in the past.  The nominee will attend and answer any questions asked of him/her and have an opportunity to defend themselves in light of the investigation. Furthermore, the hearing will be transparent and made available to the public by no later than September 15 of that year.

• Following the hearing, both the investigation and the hearing will be made available to the public for review via a free government web site.

• Anyone who interferes with this process or tampers with the investigation/hearing video, including rewriting an abridged version, will be fined and put in jail.  From time to time, it is up to Congress to define specific punishments.

• Next, appropriate election jurisdictions will place the nominee’s name on all ballots throughout the United States.  Voters will then have the opportunity to confirm the nominee’s appointment to the United States Supreme Court or reject the nominee’s appointment by a simple Yes or No vote on the November ballot.  Note, all voters must have an opportunity to select or reject this nominee since, if confirmed, this justice will serve for a lifetime on the United States Supreme Court or until they resign or mandatory retirement age of 85.

• If confirmed, the nominee will be sworn in during a ceremony in December of that year by the United States Supreme Court’s Chief Justice. Again, this justice will then serve until their premature death, resignation, or mandatory retirement age of 85.

• Concerning the lower courts, we must also strive to take out the partisan politics, decrease political polarization, and replace vacancies with judges of merit!  Therefore, when an opening occurs, the previously mentioned appellate court committee shall review candidates based on an analysis of their cases and select the appropriate judge to fill the vacancy.  That judge will then serve until their premature death, resignation, mandatory retirement age of 85 or removal by Congress by a majority vote within six years of their confirmation by the appellate court committee.   

These are our thoughts.  What do you think?  Please let us know.

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