The simple solution for Chuck Schumer today is to let McConnell know that if the Republicans force through a replacement for RBG and the election flips the Senate, along with the Presidency, the Court will be packed. The filibuster on the issue would be removed, and the Supreme Court would be expanded, as FDR wanted in 1937, to 15.
Although many pundits, and RBG herself, opposed the idea of court packing, cooler heads should consider it a good idea, completely independent of the current crisis. That is, it could work, and work beautifully. Here’s how.
First let me describe the issue. As a lawyer I know what brilliance in law looks like. I’ve seen my share of brilliant lawyers. My father was one. Brilliance in science is flashy and often eccentric, idiosyncratic. Bobby Fischer was brilliant in chess but a real nut job.
Brilliance in law is quite different. A brilliant lawyer is simply more rational than anyone else, more reasonable. He/she can solve problems by thinking deeper, often seeing lines of agreement that aren’t obvious.
The most brilliant law student in my class at Harvard was Ron Greene. Ron was a plain-spoken Midwesterner from Omaha. When he answered an exam question, the most important issue was addressed first, and simply, then the second issue and the third in perfect order and in plain English. Often he identified an issue that the professor never thought of. Ron clerked for Thurgood Marshall on the Supreme Court.
The issue is that we need brilliant lawyers on the courts of our country. But because brilliant lawyers are problem-solvers, they are often apolitical and very often lack the political clout to be appointed.
We need to not only counter the right-wing ideological bent of the McConnell appointments, but at the same time help to de-politicize the justice system and find ways to appoint the most brilliant attorneys.
For us to solve our current problem we need to not only counter the right-wing ideological bent of the McConnell appointments, but at the same time help to de-politicize the justice system and find ways to appoint the most brilliant attorneys. The court packing plan is one way to do this. What if the Court were expanded to 15, but only 10 were, at least initially, solely Presidential appointments? The remaining five would be Presidential appointments, but would be seated only if the 10 justices unanimously concurred in the appointment.
A mechanism would have to be included that would encourage the justices not to routinely reject an appointment, as well as a mechanism, such as vetting by the American Constitution Society, that would guarantee that truly brilliant attorneys were selected.
Term limits in this context are a good idea, but not for the obvious reason. FDR tried to justify his court packing plan by suggesting that men over 70 were out of touch with contemporary values and societal needs. That’s complete bull. RBG at 80 was just as sharp as RBG at 70.
What is true, however, is that if there were a 10-year term limit, a president wouldn’t hesitate to appoint a brilliant 60 or 65 year-old lawyer at the very peak of his knowledge and ability. Today we look to appoint a 45-year-old ideologue and we wind up with Alito or Thomas forever.
The Court could be split into thirds, with five justices sitting in San Francisco, five in St. Louis and five in Washington. The full 15 justices would only hear cases that generated a two-justice dissent, or were selected through a discretionary certiorari process. This would allow a considerable increase in the size of the Supreme Court docket, and the impact of the Court on the entire judicial system would grow.
The presence of at least five apolitical brilliant lawyers would act as a healthy tonic, encouraging any president and senator to apply the same criteria to district court and appellate court appointments.
Ron Greene was never a judge, but he should have been. Alas, he died young from incurable brain tumors after a successful career at a Washington firm. As a litigator I would relish the opportunity to appear in front of Judge Greene, or someone of his brilliance.
Win, lose or draw the experience would be extraordinary, and I would grow as a practitioner from the experience. Shouldn’t all lawyers be able to look forward to such an experience?