Learning from May 4

Remembering this dark day in America’s democracy.

Is America so divided it cannot sustain democracy or is democracy so unattended that those who would divide have seized power?

By February the Presidential Commission on the Supreme Court of the United States had yet to release a ‘final approved’ report the American public was promised in December. We had a ‘final draft.’ (2) Now the American public finally has a final report, approved by the Commission who wrote it. It’s sitting on the President’s desk, presumably waiting for…

Well, not my opinion. So here are my ‘fairly opinionated’ recommendations, in no particular order.

1 Senate Supreme Court Justice Confirmation Process is a Bad Joke Amidst the backslapping, photo ops and personal histories, Senate Confirmation Hearings offer an opportunity for bad drama, lying under oath, and relentless posturing by anxious white men.

2 Senate SCOTUS confirmation process cinches that any nominee is a political appointment and answerable to a political elite. Playing this confirmation out in public only strengthens entrenched elites. Eliminate Judicial Committee power of referral. Limit questioning. Limit meet and greets. Limit endorsements. The purpose is to approve and confirm, not obscure and delude.

3 Increase the number of Supreme Court Justices to 15. For every SCOTUS vacancy, appoint two, with a minimum of 1 woman per vacancy fill. Maintain 15 justice composition.

4 Retain Presidential appointment of justices in the ‘transition period.’ Once a15 person Court has been attained, task the Congressional Committee (see below) with appointing justices.

5 Expand cause for vacancy:

a. Mandatory age limit of 80

b. 25th amendment test (see 6 below)

c. Rectify demographic Imbalance currently on court — only 3 of the justices are women, 4 with KBJ. How does 7 or 8 women sound? To preserve fair representation, the Court needs more justices to reflect diversity of country: currently, only 2 justices are black, 1 is Latina. None are AAPI. None are indigenous. None are Muslim. The current court reflects the nation as it was in 1980, not 2022.

6 Expand the 25th amendment to include Supreme Court Justices.

7 In place of the Senate Judiciary Committee, the President appoints a Congressional Committee the mission of which is to review SCOTUS appointments and guide Congress in approving candidates.

8 Enforce recusal. Provide resources for Justices to answer to recusal as mandated by the Ethics Committee.

9 Stop creating commissions to cover up accountability. Not to play the spoiler, but ever wonder what happens to Commission findings, recommendations, reports? They usually die a slow and lingering death — the Warren Commission, the Koerner Commission, the Commission to investigate 9/11 and now the Supreme Court Commission. Their mandate stops short of revealing their authenticity. Why are we studying this matter if we refuse to assess our motivation into addressing the nature or the causes of the matter? It’s an immanent question which at least demands an answer.

10 Start creating commissions with authentic purpose. Missing from the Supreme Court Commission is a comparative analysis of similar efforts in other democracies. And specifically in constitution-mandated democracies. During the pere Trudeau era, Canada had a standing Commission to Study the Canadian Constitution. Chile is currently embarking on a similar venture. These Commissions do/did not intend to retire with a report.

11 Abstain from posturing that Supreme Courts should be ‘apolitical.’ This is the real reason for the President’s Commission on the Supreme Court: to render an institution capable of deliberation without appearing motivated by political interests. ‘Supreme Courts’ of whatever composition are not to be taken for granted as apolitical institutions. No one that I have heard speak recently on this subject has proposed anything other than inferring “it’s the inherent nature of ‘good’ justices to act apolitical.”

I smell a bridge for sale. And now America has a Supreme Court trust issue.

Let’s form a Commission to investigate this thingamajig and make recommendations.

Seriously?

May 14–17

Notes

1- “17 Black Women Sweep to Judgeships in Texas County,” November 9, 2018, New York Times. Harris County is the third largest county in the US.

2-In an earlier version of this article, I mentioned that we do not have a ‘final approved report.’ We did have a final report by February, though the exact timing of the release went unreported to my knowledge. To read the full report, visit whitehouse.gov

For Public Comments from ‘stakeholders.’

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