Futures and Options

A hearty thanks to Zenmervolt for inviting me to join his site as an occasional contributor.  I can say, without irony or exaggeration, that it is a privilege to share space with such a thoughtful writer.

My virgin blog post (yes, first-ever, anywhere! you saw it here!) concerns a panel discussion I watched today, sponsored by the local student chapter of the Federalist Society.  They asked the school’s four professors who teach introductory constitutional law to propose a “makeover” for the Supreme Court–a change (no matter how wildly fanciful) in the appointment process or case-decision process that would produce beneficial results.  The discussion was lively and excellent all around, and I’ll report a few of the most interesting ideas here.

John McGinnis proposed a constitutional amendment requiring a 60-vote threshold for Senate confirmation of Supreme Court nominees.  Supermajority requirements tend to produce “better” results, he argued, which in this case means nominees of higher quality that are less likely to be radical (on either side of the political spectrum).  In the long run, that’s a good thing for the rule of law, promoting more respect for the Court as it produces fewer decisions likely to enrage a significant portion of the citizenry.

Lee Epstein noted the increasing “professionalization” of the federal judiciary:  US attorneys beget district court judges beget appellate court judges beget Supreme Court justices.  For the first time in history, all nine current justices were federal appellate judges before they were promoted to the Court.  Epstein argued for greater diversity of backgrounds on the Court; diversity of input leads to stronger output.  She backed this up with empirical evidence of the cost of a monolithic court.  One problem is that justices tend to have too much loyalty to their mother circuit.  Justice Breyer, for example, affirms the good old First Circuit 70% of the time, but the other circuits only 30%.  And with four former judges now on the Court, the D.C. Circuit is enjoying a historically low reversal rate.  Interesting to note that George Bush made similar arguments when he nominated Harriet Miers.

Steve Calabresi threw out seven different proposals, the most novel of which, I thought, was to move the Supreme Court out of Washington.  He thought the justices were exposed to too many lunches with Senators, galas with diplomats, and even hunting trips with Vice Presidents (Calabresi’s allowed to poke a little fun at Scalia; he clerked for him twenty years ago).  All this mingling with the political elites is bad for the separation of powers, and it leads to the justices being out of touch with the people.  Justices with too much personal investment in the enlightened East Coast establishment will be trying to impress the wrong people when they decide cases and write opinions.  Personally, I like this idea a lot; we could even take it a step further and move the seat of the Court around every four years, Olympic-style, and cities would compete to determine who would win each four-year term.  Such a system would dramatically increase voter interest in the goings-on at the Supreme Court.  And better yet, the justices themselves would vote on where they wanted to go next:  Mobile, Toledo, Duluth, Topeka, Boise…?  Where would YOU choose?