Letter to the Editor / A PLAN FOR THE SUPREME COURT

By Roger C. Kostmayer

The following is not a prediction. It’s a suggestion about what our goals for the Supreme Court should be and how we can get there. Some of the specific suggestions are flexible and have been raised by others.

I believe that, in this unusual time and situation, the Constitution and the people both need protection and remedial reform of Supreme Court procedures. Following are suggestions for 3 areas.

1. The People and Constitutional Intent – If the Senate Republicans, as predicted, successfully steal or “pack” a second or third SC Justice in clear partisan power grabs, and there’s a Biden-Harris administration with a Democratic Congress, 6 new justices should be nominated and appointed so there would be 15 sitting Justices, reasonably balanced. The stakes for the nation’s future are too high not to respond effectively. It is possible to both listen to the will of the people and to preserve and protect the Constitution. A series of mutually beneficial reforms would follow.

2. Selection of Justices – The people and the founders want and need the most qualified nonpartisan judges to sit on the highest court in the land. A diverse, highly respected, blue ribbon selection committee should evaluate, rate and recommend not less than 5 nor more than 10 SC candidates to the President when an opening occurs. The President can add additional candidates for evaluation by the committee. The President then nominates one candidate and sends it and the committee’s evaluation to the Senate for advise and consent. A new law will require the number of sitting SC Justices to be no more than 15 nor less than 5.
The Senate, by a two-thirds majority, then appoints. This means the nominee will have to have bipartisan support and be seen as a moderate candidate in order to be appointed.

3. Tenure and Timing – The appointment to the SC will be for a term of 18 years with mandatory retirement at age 80.
Who nominates and when? A sitting President nominates unless the vacancy occurs 120 days or less before a presidential election, in which case the next President nominates.
The Senate Advise and Consent process must begin within 30 days of the vacancy, last at least 45 days, but no longer than 90 days. (This is designed to avoid both attempts to gain advantage by too quickly jamming a nominee through, or stalling & refusing to complete the process in due time.)

The goal is to create a starting point to reform the system going forward in a way that is fair, balanced and prevents endless retaliation & partisan warfare. This approach will return the Supreme Court to its proper role to impartially interpret the law based on the Constitution.