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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.
(Score: 0) by Anonymous Coward on Friday April 14 2017, @12:35AM (1 child)
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
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.
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.