The letter below was submitted to the Bernardsville News on 02-29-16 and published in the print edition on 03-04-16.
EDITOR:
Two writers here on February 25 commented on filling the vacancy on the Supreme Court produced by the death of Justice Antonin Scalia. Both made suggestions for dealing with this critical issue.
The choice of the person to fill a vacancy is enormously important for two reasons.
First: Supreme Court rulings become the law of the land and often are in opposition to strong opinions of large segments of the American people. Recent examples:
- The Citizens United ruling in 2010 facilitated greater election spending by the rich and powerful.
- The Affordable Care Act was upheld in 2012.
- The court ruled against a key provision of the Voting Rights Act in 2013, and made it easier for states like North Carolina and Texas to make voting more difficult for poor people and students.
- The Defense of Marriage Act was overturned in 2013.
Each of these cases was decided by a vote of 5 to 4.
Second: A justice will probably serve for a long time. Four justices have left the court since 2005 for reasons of death or resignation. They served for an average of 28 years. The average age of those who replaced them was 53 years at the time of their appointment.
I propose here a simple change that will facilitate a more orderly and less contentious process: Appoint a new justice in July of each odd numbered year to serve for a term of 18 years. I see several benefits.
- Each president will have two scheduled opportunities to appoint a justice during a 4-year term. He or she and the Senate can plan for these.
- Fresh judicial blood will be added every two years. The court will more accurately reflect the philosophies of recently elected presidents and senators.
- There will be no incentive to appoint young justices.
- Justices will know when their terms will end.
- Appointments will not be in an election year.
- The stakes will be lower in any specific appointment.
Follow the standard practice for nomination by the president and advice and consent by the Senate.
There should be fewer vacancies caused by resignation or death. If one occurs, follow standard practice to fill the unexpired term.
This proposal will require an amendment to the Constitution. With today’s polarized politics, amendment proposals are usually dead on arrival.
The change proposed here will be fair and produce no advantage for any part of the political spectrum. It will reduce the likelihood of disputes like the one we see today. It could, and should receive bipartisan support.
Bill Allen 02-29-16