On Monday, Democratic presidential candidate Pete Buttigieg detailed his Supreme Court reform plan for NBC News, sketching out a split-the-difference effort at bipartisanship that he thinks would end the country’s divisive court wars. Unfortunately, Buttigieg’s plan is an unwieldy mess, a soggy, not-ready-for-prime time idea that manages to be profoundly infeasible while also seeming like it was designed by the naïve compromise-mongers at Third Way.
Buttigieg’s expansion plan would place 10 permanent members on the Supreme Court — five Democrats and five Republicans. That lucky group would then select, on the basis of unanimity or “a strong supermajority,” a rotating cast of five one-year appointments chosen from the federal district and appellate courts. And if the 10 permanent members can’t agree on a list of five names, they basically just shut down the Supreme Court for the rest of that term.
This laughable proposal is a target rich environment, easy to lampoon from both a practical and partisan perspective. Buttigieg, the mayor of South Bend Indiana, is working from a forthcoming Yale Law Review article by Daniel Epps and Ganesh Sitaraman, available here in draft form. Having read it all the way through, it is clear both that this plan is a hot, unworkable mess and that media reports about it have been largely inaccurate, with some suggesting that the permanent members of the Court under this scheme would be chosen by the parties themselves.
But this is not how Epps and Sitaraman characterize it. They only say that the justices “would be chosen through a political process much like our current system” and then game out a variety of strange and problematic scenarios, including the idea that “the President choose nominees for some of the seats from a list prepared by Senate leadership of the opposite party or by some kind of bipartisan commission.” While the authors ultimately decline to offer a clear plan about how any of this would work, they strongly imply that the president would still be responsible in some way for nominating the first 10 justices. It seems obvious in interviews that Buttigieg also has no idea how this basic mechanism of his signature policy proposal would function.
Setting that foundational ambiguity aside, there are further problems. The odds of people like Sonia Sotomayor and Neil Gorsuch quickly agreeing on a list of five colleagues to bring into the office every year are vanishingly low. With the Court’s current makeup and deep divides, it seems like the Supreme Court would be out of session more often than not due to an inability to agree on the final five. Buttigieg’s plan also creates an incentive for whichever side controls a majority of district and appellate courts to play hardball, since deep-sixing SCOTUS for a whole term would leave lower court decisions in place. For instance, if the Court was deadlocked like this today and thus out of session, the fate of Roe v. Wade would rest with the appellate courts. This hardly achieves the depoliticization that Buttigieg says he wants, instead transferring the field of warfare to the lower courts.
The plan also makes it possible to elevate recently-appointed district court judges to the Supreme Court. Do we really trust them with such important decisions? And do we want to ask an already-overwhelmed body staffed partially by propped-up septuagenarians and near-death should-be-retirees to make time for five critical hiring decisions every year? How will these would-be Supreme Court justices audition for their temporary call-up to the majors? If presidents are forced to nominate members of the opposite party, how can we be sure that it isn’t a hardened partisan masquerading briefly as a member of the other party? Would the lists produced by each party’s Senate caucus be legally binding?
It’s actually kind of bizarre that Buttigieg doesn’t have answers to any of these questions, or an awareness that his plan has more plot holes than a J.J. Abrams movie, since he’s been yapping about it since at least March, when he endeared himself to Democratic activists by appearing to endorse court-packing. But now that the details are getting more attention, it has become clear that he doesn’t favor the kind of court-packing desired by people with MERRICK GARLAND FOREVER tattoos (it me!), but rather a milquetoast compromise package riddled with logical and legal problems.
Buttigieg’s scheme is also likely unconstitutional in several ways. The Constitution clearly grants the authority to appoint federal judges to the president, with the Senate confirming. You can imagine a workaround here — the 10 permanent members pick the other five and the president officially ‘nominates’ them — but this would also require both a cooperative Senate and president. And imposing what are effectively term limits on the rotating justices runs into the Constitution’s lifetime appointment language, which reads “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior….” In other words, the proposal itself would end up in court immediately.
Maybe it would survive and maybe it wouldn’t, but if you’re going to pursue a reform scheme that is vulnerable to Constitutional challenge, why not go with one that recognizes the inherent political nature of the Court, truly routinizes appointments and grants each president the right to shape the Court for a short period of time? Fix the Court, a non-partisan organization dedicated to court reform, has a plan that fits with the scholarly consensus about how to truly change the high court for the better — it imposes 18-year term limits for Supreme Court justices, giving each president an appointment in the first and third year of their terms, with special procedures in place for when a justice can’t complete their term.
The Fix the Court plan gets the incentives of our no-holds-barred partisan era right. Any law that isn’t a Constitutional amendment is always going to be vulnerable to being overturned when one of the two parties seizes unified control of the federal government. Fix the Court’s term limits package would almost certainly make such hardball redundant, since the new president and his or her Congressional majorities would already get to significantly reshape the Court in a single term, unless the other party has a 7-2 majority. The Buttigieg Plan, on the other hand, wouldn’t survive a single unified partisan government in D.C., since court packing would always offer a better chance at immediately achieving ideological goals.
It is also amazing in a very bad way that Buttigieg is offering this plan with the hope of winning over Democratic primary voters, since it seems to place the Supreme Court of the United States permanently in the hands of an incredibly narrow cabal of ideological ‘centrists’ who are likely to impede progressive change far into the future. While this might be better than the narrow majority of Originalist Gangsters currently in control of the Court, it is certainly not the future to which Democrats should aspire. It is an arid vision of the legal system suffused with hopeless nostalgia for the long-gone, pastel-hued, Gang of 8 era of bipartisanship that Mitch McConnell and his friends smothered with a pillow until it was limp.
The better way for Buttigieg to gain traction in the primary would be to advocate either for court-packing or for term limits, both of which now have substantial support among Democratic voters who are enraged by the GOP’s hostile and norm-busting takeover of the courts. This nonsensical plan, on the other hand, only reinforces the perception that Buttigieg himself isn’t ready for the spotlight.
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The Week · by David Faris · June 5, 2019