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Answer to judicial confirmation conundrum: multiple choice

This proposition could have merit and be accomplished without invoking a laborious and an implausible ratification or legislative process.

Marshall H. Tanick
The conflagration that erupted during the recent confirmation hearing for Supreme Court Justice Brett Kavanaugh triggered consideration of several alternatives to the current — and longstanding — process for filling future vacancies on the high court.

One of them is to set term limits rather than lifetime appointment of the jurists; another is to expand the number of justices from the current nine-member status. Both propositions, aimed at ameliorating the divisiveness and rancor of the selection process and those characteristics embedded within the ensuing composition of the tribunal, are plagued with practical limitations.

The former would probably require a constitutional amendment because the Constitution now provides that federal judges at all levels maintain their positions during “good Behaviour,” which has generally been regarded as lifetime sinecure, subject to the rarity of impeachment for “high Crimes and Misdemeanors,” the same standard for removal of the president.

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The latter, changing the size of the court, has been done in the past by statutory modifications, but the adverse outcome of President Franklin D. Roosevelt’s court-packing plan in the late 1930s has made that proposition odiferous.

Thus, achieving passage of a congressional amendment to the Constitution, which must be ratified by 38 states to boot, or enacting statutory changes are unlikely prospects, regardless of the prudence of the pair of proposals.

Presidential power

But another proposition that has not been raised at all to address the confirmation conundrum could have merit and be accomplished without invoking a laborious and an implausible ratification or legislative process.

It could be done simply by unilateral action by the person with the constitutional power to nominate the jurists, the president, whoever he or she may be, subject to confirmation by the Senate.

It’s the submission of multiple nominees for future Supreme Court positions.

There is nothing sacrosanct with the current one-nominee-per-vacancy practice. Neither the Constitution nor any statute or regulation mandates it.

Indeed, many high-level public positions are filled in this manner here in Minnesota and elsewhere. School board superintendents, heads of statewide educational institutions, and other public sector and even some private sector positions follow this arrangement, with names of multiple candidates furnished to the decision-maker, usually an elected or appointive board.

In Minnesota, judicial selection bypasses the confirmation process. The governor is constitutionally empowered to appoint all state court judges, including the trial, intermediate appellate, and Supreme Court levels, who then stand for re-election by the voters every six years, as well as some of the members of specialty tribunals like the tax and workers compensation courts. There is no oversight, no constraints other than eligibility as a voter, age (at least 21 and less than 70), and requirement that they be “learned in the law,” meaning licensed as a lawyer, devoid of any legislative approval process.

The federal level differs, with the Senate having the constitutional role of providing “Advice and Consent,” the terminology for confirmation for all jurists, although most proceedings are rather perfunctory below the Supreme Court level.

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But there is nothing, other than tradition, that limits the process to a single nominee for each opening. The president could forward more than one prospect for consideration.

Here’s how it could work. The president would submit several names of candidates, preferably three or so, to the Senate. The system would then go forward with the normal process, which sometimes turns out to be abnormal: background checks followed by confirmation hearings by the Senate’s Judiciary Committee, and the ultimate decision by that body as a whole.

The committee could advance a single one, or more, for final consideration or, perhaps, take a recommendatory vote, ranking the candidates by preference, or any of a myriad of other arrangements. To add some sizzle, the solons could have semi-finalists, followed by final round selections, and maybe even incorporate some type of vote by internet participation by the public akin to “American Idol,” “Dancing With the Stars,” or a dose of “The Bachelor” or “Bachelorette.”

Varied viewpoints

There are some good reasons favoring such an approach.

It would allow greater diversity in the selection process. It might militate in favor of more middle-ground nominees who are less extreme and divisive. It also could assure that more varied viewpoints and voices permeate the judicial selection process. It also would preserve the constitutional prerogatives of the president to nominate and the Senate to confirm.

There are, to be sure, some drawbacks to this arrangement. It might retard the pace of the selection process. It also could inspire more bickering and back-room deal making, although that actually may lead to more compromises ameliorating the vitriol that currently infects the process.

Overall, the advantages may outweigh the deficiencies of this break from tradition in light of the acidity of the current process; change may be in order. As President Trump repeatedly said while advancing his candidacy during the 2016 campaign: “What do you have to lose?”

Plus, it would make for great reality TV.

Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.


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