My colleague Bill Widen asked me to post this for him,
Going to 11
Many who oppose the conservative drift of the court now argue for an increase in the number of Supreme Court Justices to 11. The idea is to rebalance the ideological rightward shift of the court back to center by appointing one centrist and one left leaning justice. An increase to 15 justices is clearly much too 1930’s. Eleven is just right (or left?) because President Trump has now appointed 2 Justices.
Nigel Tufnel: . . . What we do is, if we need that extra push over the cliff, you know what we do?
Marty DiBergi: Put it up to 11?
Nigel Tufnel: 11, exactly. . . [From the film This is Spinal Tap (1984)]
We may face another Supreme Court vacancy at any time. If we have not gone to 11 by then, here is another “outside the box suggestion” which Chief Justice Roberts might use all by himself.
When there is a vacancy and the Senate does not seem inclined timely to perform its Constitutional duty of advice and consent, simply appoint a sitting judge from the DC Circuit to sit by “designation” to fill the spot. Choose the fill-in like one chooses the third arbitrator in a contract dispute—allow Democrat appointed Justices and Republican appointed Justices to settle on a mutually acceptable substitute—just a hunch, but somebody like Judge Merrick Garland might get the call.
This substitute would function like a shadow justice—he or she would listen to the oral arguments in the gallery and write up a report—indicating a recommended disposition of the case (much like a U.S. magistrate currently advises a District Court judge). The sitting Justices would have an agreement to engage in “paired” voting, like was done in the Senate to allow one senator to attend a wedding while the others voted on Judge Kavanaugh’s confirmation. The paired voting would be done to insure the outcome is the same as if the shadow justice had been a duly appointed Justice. We have replicated a Supreme Court staffed with 9 Justices. No Presidential nomination. No Senate advice and consent. No problem.
The Chief Justice would only invoke such a procedure as a stop gap when the Senate decides to shirk its responsibilities. It guards against a 4-4 vote at the Supreme Court. It shows bipartisan self-help by Justices working together to pick the substitute when the Senators fail to act like the adults in the room. It reflects a practical commitment to problem solving to achieve just outcomes and the appearance of fairness. Sometimes to fix things only duct tape will do.
Perhaps future appointments to the DC Circuit Court of Appeals could be made with the understanding that, when the Executive nominates, and the Senate confirms, these DC Circuit judges would form a “bench” of substitutes which might be called up by the Chief Justice. (Such judges already have life tenure on a bench, though for good measure any call-up from the minors could deposit an irrevocable resignation letter with the Chief Judge, agreeing to step down upon the appointment of a successor. Thus, technically, the substitute would have “lifetime tenure on the Court.”) The Senate and the President could, perhaps, retroactively designate all members of the DC Circuit for this purpose. That, of course, would require a bi-partisan effort to address a problem. For now, a self-help option might be handy.
Professor William H. Widen University of Miami School of Law
My colleague Bill Widen asked me to post this for him. (I added the photo.)
(cc: Senators Flake & Kyl)
William H. Widen
We respect John McCain for choosing honor over convenience under the extreme conditions of captivity and torture. A great man filled a large office. We too often fill large offices with small people—people who fail the test even when the test posed is less severe. Failing the test of telling the truth under oath—even when uncomfortable—might result in being disbarred for perjury. The testimony of Dr. Ford at the confirmation hearings for Judge Kavanaugh was compelling. Her testimony raises a serious question about the truthfulness of Judge Kavanaugh under oath. To believe her is to believe that Judge Kavanaugh is either lying about the event or lying about the degree to which, as a young person, he allowed alcohol to impair his judgment and memory.
Jeff Flake recently expressed support for Judge Kavanaugh while simultaneously expressing serious doubts about who to believe. He expressed a wrong idea about the standard required for Senate advice and consent—stating that due process and the rule of law required his support because allegations against Judge Kavanaugh were not proven. Tragically, this is the wrong standard.
A public office is not the property of its holder (or would be holder). The standard for Senate advice and consent to hold office is to error on the side of protecting the Republic. This standard will deny office to some unjustly, but that is the price paid by those who would seek and hold public office. The Federalist Papers make this abundantly clear. Impeachment proceedings illustrate the point most clearly. An office holder, such as a President, should be removed, with the Senate erring on the side of removal to protect the Republic. Only after removal do we apply notions of due process to protect the former office holder in his life, liberty and property. The humiliation of removal from office goes with the territory of submitting to service, but due process protects thereafter. So too with considerations of appointment to office. The failure to appoint may be humiliating and unjust—but there is no remedy for this. The public offices are our offices, not the property or entitlement of individuals. No appointment should be made here—even though, in fact, this may work an extreme injustice to Judge Kavanaugh. In the face of serious doubt, the exercise of Constitutional authority requires a “no” vote.
One cannot suspend Constitutional duty to properly exercise Senatorial advice and consent to exact a political price on fellow senators for bad behavior—that is a reckoning for another time. Bad behavior by small people is a bipartisan activity. The cycle of tit for tat must stop. When a large office is filled by an ordinary person, sometimes the ordinary person rises to the demands of that office by choosing honor when confronted with adversity. Allow a Gladiator moment in this American tragedy. John McCain was a soldier of the Republic. Honor him!
Professor William H. Widen
University of Miami School of Law
No, this isn’t a post about Bret Kavanaugh’s high school or college drinking. It’s about the blog. It seems discourse.net is getting hammered by bots trying to break in to it, so the site has been up and down like a yo-yo for the past 24 hours or more.
I’ve spoken to tech support, and their only suggestion was to activate Cloudflare. That comes in two flavors on my host. One is free, but requires some changes, including to the site certificate. The other is $120/year, which would practically double my hosting costs. So I’m going to try to wait it out a bit before maybe changing hosts or something.
Meanwhile, on the subject of Kavanaugh, a friend from Yale writes:
Just for the record, I overlapped with Brett Kavanaugh at Yale Law School. However, I did not know him. The only Kavenaugh I was then aware of in the Yale community was Kavenagh’s, a great burger joint which featured a cheeseburger made with blue cheese. I can testify wholeheartedly to the fine character, intellect, and morals of that burger. Perhaps it should be appointed to the Supreme Court.
Seems that Judge Kavanaugh was a DKE as an undergrad. DKE was notoriously the most most drunken (well, maybe tied with a singing group) and least evolved student organization when I was an undergrad at Yale, only a few years before Kavanaugh. It is not a good recommendation for a Judge, much less a Justice. Certainly not disqualifying on its own, but it helps set a context for other things.