A coalition of prominent constitutional scholars released draft legislation Thursday proposing significant reform to the Supreme Court confirmation process, in hopes of depoliticizing judicial appointments.
The legislation incorporates proposals from liberal and conservative practitioners. The draft legislation was brokered by Associate Dean Alan Morrison of George Washington University Law School, Professor Emeritus Paul Carrington of Duke Law School, Caroline Fredrickson, president of the American Constitution Society, and Gabe Roth, executive director of Fix the Court, in consultation with other scholars.
“Politics has infected the Supreme Court confirmation process,” a letter attending the proposal reads. “Everyone knows it. Denying it is pointless, and so is blaming one another for starting it.”
“The American people do not care who created this problem or how it began,” it adds. “They want their elected representatives to fix it.”
The proposal presents a cyclical vision of Supreme Court tenure, in which justices leave and enter judicial service at a predictable clip. It provides that the president will appoint a justice to the Court during the first and third years after a presidential election. In this scenario, the longest-serving justice on the Court would leave regular service and become a “senior justice” who may continue to hear cases in the lower courts.
Should a vacancy occur on the Court by reason of death, retirement, removal or resignation, the senior justice who has most recently attained senior status will serve until the next appointment is made under the process described above.
The legislation also provides that a justice who has served for 18 years would assume senior status.
“[The process] removes the unabashed partisanship of the current process by creating a fair and regular system for biennial appointments to the nation’s highest Court,” proponents argue.
The proposal is addressed to the House and Senate judiciary committees and has 21 signatories.
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