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posted by on Thursday April 13 2017, @02:03PM   Printer-friendly
from the proven-solutions dept.

The Center for American Progress reports

After Senate Majority Leader Mitch McConnell's (R-KY) decision to prevent a president of the opposite party from nominating anyone to the Supreme Court, it's doubtful that any justice will ever be confirmed again when the presidency is controlled by a different party than the Senate. That means America will lurch back and forth between extended periods with a understaffed Supreme Court, followed by massive shifts in the law as one party fills a backlog of vacancies.

[...] Several states have shown that there is a better way [than what, it appears, will happen at the federal level from now on].

The Missouri plan

As America struggled through the Great Depression, Missouri's courts were a den of partisanship and corruption. As former Chief Justice of Missouri Michael Wolff explains, judges were "selected in elections in which nominees were chosen by political parties under a patronage system." In much of the state, judges were selected by a single machine party leader, "Boss" Tom Pendergast. Throughout Missouri, "judges were plagued by outside political influences, and dockets were congested due to the time the judges spent making political appearances and campaigning."

Frustrated with their politicized judiciary, the people of Missouri passed a ballot initiative replacing the state's corrupt process with a non-partisan coalition--at least for the state's top judges.

When a vacancy arises on the state's supreme court, a seven person commission consisting of "three lawyers elected by the lawyers of The Missouri Bar . . . three citizens selected by the governor, and the chief justice" submits three candidates to fill that vacancy to the state's governor. The governor then has 60 days to choose among those three names. If the governor fails to meet this deadline, the commission selects one of the three.

Finally, after a year of service, the newly appointed judge must survive a retention election, where a majority of the electorate can cast them out of office--though this only happens rarely.

This method of judicial selection, as well as variants upon it, was adopted by many states since its inception in Missouri.


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  • (Score: 4, Insightful) by AthanasiusKircher on Thursday April 13 2017, @02:30PM (20 children)

    by AthanasiusKircher (5291) on Thursday April 13 2017, @02:30PM (#493393) Journal

    Regardless of the merits (or problems) of this alternate system, it makes little sense to propose something that would require a Constitutional amendment to implement as an alternative to partisan action.

    If we had a supermajority who could agree on procedure in a reasonably non-partisan way, we wouldn't have ended up where we are now in the first place. Supposedly, the Senate requires a 2/3 supermajority to change the Rules of the Senate, but the "nuclear option" has now set a precedent twice that that's really not required -- and that's how we've ended up in our current situation.

    Meanwhile, Constitutional amendments definitively require a 2/3 supermajority in both houses to get on the path to ratification. Why would both parties agree on a plan like this when, as the summary clearly explains, they're happier playing partisan roles even if it creates significant disruption?

    Don't get me wrong -- it's fun to debate alternative systems. But claiming this is a "simple plan" to end confirmation wars when it would require even more unanimity in procedure than it would have taken to prevent the mess we're currently in (or prevent the continuation of said "mess" in future nominations) -- that's not "simple"... that's "unrealistic."

    (And before anyone starts off on the possibility of an Article V convention doing something like this -- I'd say that's even more unrealistic than getting Congress to pass it.)

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  • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @02:40PM (10 children)

    by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @02:40PM (#493403) Homepage Journal

    It's still possible, though unlikely. States can amend the constitution directly, bypassing the federal government entirely. See Article V of the Constitution.

    --
    My rights don't end where your fear begins.
    • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @02:45PM (9 children)

      by AthanasiusKircher (5291) on Thursday April 13 2017, @02:45PM (#493408) Journal

      First, please re-read the last sentence of my post, which DIRECTLY addresses what you said. Second, it's not that simple -- state legislatures can call for a convention to amend the constitution; they cannot amend it "directly." And said convention needs to be allowed by Congress, who determines whether the criteria have been met to call it. And since there's no precedent for any of this, it's unclear exactly how said convention might conduct business or how it might be governed by the wishes of the states or perhaps the constraints imposed by Congress or the federal courts.

      Anyhow, claiming that "states can amend the constitution directly" grossly oversimplifies what might actually be required to make that happen.

      • (Score: 2, Disagree) by The Mighty Buzzard on Thursday April 13 2017, @03:09PM (8 children)

        by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @03:09PM (#493426) Homepage Journal

        I did read it. It was just insane, so I ignored it. Saying the states are less likely than the federal government to pull power back to the states from the federal government is patently absurd.

        Secondly, there is precedent that predates both the constitution and Congress.

        Thirdly, if two thirds of the states call for an article 5 convention, woe betide a federal government that tries to stand in the way. There are no outcomes of doing so that work out well for them.

        I'm not saying it's easy but it isn't complicated either.

        --
        My rights don't end where your fear begins.
        • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @04:40PM (7 children)

          by AthanasiusKircher (5291) on Thursday April 13 2017, @04:40PM (#493484) Journal

          Saying the states are less likely than the federal government to pull power back to the states from the federal government is patently absurd.

          We had a notable attempt at that before. It was called the Civil War. I think we all know how that turned out.

          Ultimately, after everything else, the question comes down to -- who has the bigger army?

          Thirdly, if two thirds of the states call for an article 5 convention, woe betide a federal government that tries to stand in the way.

          Well, first you seem to completely ignore the fact that our state governments are generally about as divided in partisan warfare as the federal government, so you seem to be overlooking the fact that it's probably an equivalently difficult partisan threshold to get over on the state level as on the federal level to summon a convention.

          Second, you completely ignored my point about Congress certifying the convention to begin with. By many arguments, we ALREADY have had enough petitions from states to call a convention, yet we have none. Why? Because Congress effectively gets to make the rules here -- are states allowed to withdraw their support? (If so, as seems to be the current interpretation, getting the state threshold is a lot higher, because a change in party or whatever in a particular state could lead to flip-flopping making it difficult to get a simultaneous occurrence of enough active petitions.) How similar do the requests for conventions have to be? Do they all have to deal with the same issue? Etc.

          Believe me, I'd be THRILLED if we could actually get an Article V convention going. Do I think it has ANY chance of happening in my lifetime, barring some complete insurrection or breakdown of civil order or something? No.

          • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @05:01PM (2 children)

            by AthanasiusKircher (5291) on Thursday April 13 2017, @05:01PM (#493494) Journal

            By the way, I misread the first statement you quoted, and now I get what you were trying to say. I just don't think this is a federal power issue, though. We're talking about changing the mechanics of federal court appointments. That's not removing federal power. And yes, I do think it's less likely that states will get to dictate that process in an Article V convention than for Congress to accomplish reform internally (though I think both are unlikely).

            In any case, I think this whole discussion is beginning to get far afield from my original point -- which is that we'd actually need a lower threshold of bipartisanship to just prevent future "confirmation wars" than any of these proposed Constitutional amendment scenarios. Why will we get to the Constitutional amendment when we could just "behave better" with much less bipartisan agreement required?

            • (Score: 2) by The Mighty Buzzard on Thursday April 13 2017, @09:36PM (1 child)

              by The Mighty Buzzard (18) Subscriber Badge <themightybuzzard@proton.me> on Thursday April 13 2017, @09:36PM (#493642) Homepage Journal

              Getting politicians to behave better is not an option. You have a choice between two pieces of shit. Every single time.

              Personally, I think a constitutional amendment would just be re-amended by congress to put things back the way they were; or worse. The only thing that's going to save this nation is watering the tree of liberty with the blood of tyrants and patriots.

              --
              My rights don't end where your fear begins.
              • (Score: 0) by Anonymous Coward on Friday April 14 2017, @02:48AM

                by Anonymous Coward on Friday April 14 2017, @02:48AM (#493791)

                No, you just believed the lie that you only had two choices. There are third party candidates who are at least much less shitty than the two main party candidates for most positions. Everyone says they dislike partisan politics, but the only way to change things is to stop voting for these parties!

          • (Score: 2) by jmorris on Thursday April 13 2017, @07:28PM (3 children)

            by jmorris (4844) on Thursday April 13 2017, @07:28PM (#493579)

            We had a notable attempt at that before. It was called the Civil War. I think we all know how that turned out.

            Politically it worked exactly as it should, the dissenting States pulled out and were successful in forming a new government.

            Ultimately, after everything else, the question comes down to -- who has the bigger army?

            Yup, When Lincoln lost the political argument he appealed to the sword and won. And set the precedent that defying Washington could and would be punished with atrocities against civilian populations. Meaning any future attempt either needs overwhelming odds, i.e. not so much secession but an expulsion of the Blue Rump, or the states leaving need enough WMD in weaponized form to instantly pose a credible MAD deterrent. Note that the scenario under discussion, a supermajority of States voting for an Article 5 convention and being denied by Congress would be an "expel the rump" situation where the swamp in DC would be simply discarded.

            Btw, the nomenclature of "Civil War" is itself Union propaganda intended to disguise their crimes. A "civil war" is when two or more factions contend for control of a nation state. A "war of independence" is when one portion of a political entity declares independence from the rest. But saying the Union smashed the South's claim for independence in exactly the same was as King George failed to do to His former colonies doesn't sound nearly as noble. Once you notice the language trick you begin seeing it everywhere; control the language used to discuss a thing and you are usually 90% of the way to winning the argument.

            • (Score: 2) by tangomargarine on Thursday April 13 2017, @09:36PM (1 child)

              by tangomargarine (667) on Thursday April 13 2017, @09:36PM (#493643)

              It's too bad that the question of states' rights had to get caught up in a war over owning slaves.

              I suppose some would argue that states' rights only comes up when states want to be assholes and the feds won't let them. But if the UK can leave the EU, why can't a state leave the U.S.? (other than "because we'll beat your ass if you try")

              --
              "Is that really true?" "I just spent the last hour telling you to think for yourself! Didn't you hear anything I said?"
              • (Score: 2) by dry on Friday April 14 2017, @04:47AM

                by dry (223) on Friday April 14 2017, @04:47AM (#493820) Journal

                The other question is how large a majority should decide on secession? 50%+1? Personally I think it should take some sort of super majority so to not end up like the UK where the election might have gone the other way on a different day.

            • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @11:22PM

              by Anonymous Coward on Thursday April 13 2017, @11:22PM (#493697)

              You write this as if we should be having our slaves attend to the details as to why Mr. Lincoln had chosen to follow his social justice war.

  • (Score: 2) by Immerman on Thursday April 13 2017, @04:02PM (1 child)

    by Immerman (3985) on Thursday April 13 2017, @04:02PM (#493462)

    (And before anyone starts off on the possibility of an Article V convention doing something like this -- I'd say that's even more unrealistic than getting Congress to pass it.)

    Why? It's worked several times before. Congress has a wonderful track record of suddenly getting their act together and implementing something themselves whenever there's the threat of an imminent constitutional convention to do so. They're in no hurry to surrender their power to the states.

    Now, whether this specific goal would be able to build sufficient momentum to pose such a threat... I don't know. I think it would depend largely on how well funded the PR campaign was.

    • (Score: 2) by AthanasiusKircher on Thursday April 13 2017, @04:53PM

      by AthanasiusKircher (5291) on Thursday April 13 2017, @04:53PM (#493488) Journal

      Now, whether this specific goal would be able to build sufficient momentum to pose such a threat... I don't know.

      That was actually my main issue. Yes, I'm aware that threats of a convention have been helpful in pushing movements before. I know I got bogged down in another reply about the mechanics of proposing a convention, but realistically state politics don't seem more likely to me to coalesce around pushing this issue than Congress is.

      I think it would depend largely on how well funded the PR campaign was.

      That's actually a big problem -- WHO would be in favor of this enough to throw huge monetary support behind it? Almost all special interests would prefer a particular kind of justice appointee, and almost all of those special interests are aligned more with one party than another. A vote for "moderation" in the process will just mean to most of them that they're less likely to see a nominee who would seem solidly on their side (or perhaps on any side). Unless the court comes to slant firmly in one direction in the future, I'd bet most special interests would rather "roll the dice" in Presidential elections and Congressional majorities and be sure they have nominees who are likely to go their way, rather than the "wildcards" of open-minded jurists who might rule either way!

  • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @06:41PM (2 children)

    by Anonymous Coward on Thursday April 13 2017, @06:41PM (#493546)

    Meanwhile, Constitutional amendments definitively require a 2/3 supermajority in both houses to get on the path to ratification.

    Or alternatively, it requires one low-level judge to overturn centuries of precedent by claiming that we have a "living Constitution" and say that all states and commercial institutions are now required to follow new rules that are the opposite of what the law has been since the 1600s.

    This is why Republicans are so angry.

    • (Score: 0) by Anonymous Coward on Thursday April 13 2017, @10:06PM (1 child)

      by Anonymous Coward on Thursday April 13 2017, @10:06PM (#493660)

      Hey, Congress: Don't like what another branch is doing?
      Form a supermajority and override that branch.
      It's right there in the founding documents.

      What's that you say? You guys aren't in consensus?
      Well, get your shit together.
      Start by reading Ralph Nader's book. [google.com]

      ...and, hey, you think things are weird in USA?
      Check out Venezuela in recent weeks. [mintpressnews.com]

      Since January 2016, the Supreme Court ruled that the National Assembly was in contempt of the constitution [...] over fraud charges involving opposition deputies from the state of Amazonas. The officials were caught in a recording illegally offering sums of taxpayer money to citizens, encouraging them to vote for opposition candidates.

      When the Supreme Court ordered the National Assembly to hold elections to replace the corrupt leaders, the legislative body refused.

      ...at which point the Venezuelan Supreme Court said that until the legislature was no longer in contempt, the legislature couldn't make any more laws.

      -- OriginalOwner_ [soylentnews.org]

      • (Score: 2) by dry on Friday April 14 2017, @04:49AM

        by dry (223) on Friday April 14 2017, @04:49AM (#493822) Journal

        I think Andrew Jackson set the precedent when the Supreme Court ruled against him with the observation that he had the army, not them.

  • (Score: 2) by BK on Thursday April 13 2017, @08:51PM (2 children)

    by BK (4868) on Thursday April 13 2017, @08:51PM (#493620)

    Or we could keep the current system as described in the US Constitution and have all the same benefits.

    he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court...

    I swear that lawyers don't read English. Lawyers see a single word -- 'adviceandconsent' -- and I see a list of two steps 1) Advice and 2) Consent. In practice, the Advice stage has been skipped all along until now. The stakes were low for nearly 200 years and the Senate was happy to Consent to just about anyone that wasn't obviously inappropriate. This was deemed to be the 'adviceandconcent'.

    Now the stakes are higher and due to a quirk in the US system, it is possible, and even likely that the Senate may be run by a party different from the President's. The Senate may want to offer some 'Advice' -- they may even be entitled to do so.

    If BHO had wanted to follow the Constitution nominate a Justice that the Senate might Consent to, he could have approached the Senate and asked for a list that might be acceptable... He might have had some parameters of his own -- must be lawyers or current judges (wouldn't want to let someone in from outside) -- but it seems to me that a list might have been forthcoming. Heck, they could have just given him DJT's list.

    You might not be happy with this approach. Certainly, Garland would have been left off any such list. But if you look at the Missouri plan as proposed by the Center for Propaganda above, it bears some similarity. The appointed has to go to another body for advice as to who may be nominated. A choice is made about who to nominated. And there is a process after that ultimately leads to full appointment.

    Before we start a process of amending this constitution, why not try doing what it says in the plain text first?

    --
    ...but you HAVE heard of me.
    • (Score: 0) by Anonymous Coward on Friday April 14 2017, @12:35AM (1 child)

      by Anonymous Coward on Friday April 14 2017, @12:35AM (#493730)

      Note that while the Senate, as a body, doesn't currently offer advice as such, that doesn't mean the President doesn't have communications with Senate leadership about what nominees they're likely to consent to; in some sense this could be taken to fulfill the Advice stage anyway, and I believe this has happened sometimes in the past.

      If BHO had wanted to follow the Constitution nominate a Justice that the Senate might Consent to, he could have approached the Senate and asked for a list that might be acceptable... He might have had some parameters of his own -- must be lawyers or current judges (wouldn't want to let someone in from outside) -- but it seems to me that a list might have been forthcoming. Heck, they could have just given him DJT's list.

      Sen. Orrin Hatch, days before Garland was nominated:

      [Obama] could easily name Merrick Garland, who is a fine man. He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.

      See, the Garland thing was never about the candidate. It was about the Republicans' determination to prevent any nominee, no matter how qualified, from being confirmed until after the election was settled, preferring to roll the dice on winning the election. (And maybe, once they saw Obama had nominated a compromise candidate, to quickly confirm him if the Ds won.) I'm sure they could have come up with a list, but as they were completely uninterested in compromise candidates, such a list would have just put the shoe on the other foot, where Obama wouldn't nominate any of them, preferring to roll the dice on winning the election. (Both parties were pretty confident they would win; there was enough doubt that they might rationally have gone for a compromise candidate, but neither considered their situation anywhere near bad enough to merit picking the "least bad" from the opposition's top-five list.)

      • (Score: 2) by BK on Friday April 14 2017, @01:31AM

        by BK (4868) on Friday April 14 2017, @01:31AM (#493752)

        Note that while the Senate, as a body, doesn't currently offer advice as such, that doesn't mean the President doesn't have communications with Senate leadership about what nominees they're likely to consent to

        Sure. And the constitution is spectacularly vague as to just what 'advice' might mean. But my point is that the outline of a suitable mechanism exists... If amending the constitution is impractical in the short term, there is another way.

        See, the Garland thing was never about the candidate. It was about the Republicans' determination to prevent any nominee, no matter how qualified, from being confirmed until after the election was settled [...] but as they were completely uninterested in compromise candidates, such a list would have just put the shoe on the other foot, where Obama wouldn't nominate any of them

        Perhaps. I think it's fair that the BHO and the congress had effectively no working relationship by the 2016. Both had grievances they couldn't get around and both had at least a measure of just cause.

        Still, I think that if a solution is going to exist short of an improbable amendment, it is going to be one that is driven by the Senate.

        --
        ...but you HAVE heard of me.
  • (Score: 2) by Common Joe on Sunday April 16 2017, @04:27AM

    by Common Joe (33) <{common.joe.0101} {at} {gmail.com}> on Sunday April 16 2017, @04:27AM (#494670) Journal

    it makes little sense to propose something that would require a Constitutional amendment to implement as an alternative to partisan action.

    it's fun to debate alternative systems. But claiming this is a "simple plan" to end confirmation wars when it would require even more unanimity in procedure than it would have taken to prevent the mess we're currently in (or prevent the continuation of said "mess" in future nominations) -- that's not "simple"... that's "unrealistic."

    This is both simple and unrealistic. There is also some sense in it.

    This isn't about those the nut jobs in office who refuse to vote for anything logical or good for the common man. It's about common people showing other common people how broken the system is and how these politicians don't care for anyone but themselves.

    When I was a kid, my Dad told me how he shared left over cake between him and his sibling when there was just a single piece left. One would cut the piece and the other would choose which piece to take. It virtually ensured equality. Simple, effect, and fast. Then one day, his jealous sibling got out a ruler and measured both pieces very carefully for a long time...

    You're right. It's not realistic with these people involved. But I learned something about people that day: There are those who would prefer to see the world burn than do something that benefits everyone.