February 25, 2016

THERE’S A LOT OF TALK ABOUT REFORMING THE SUPREME COURT CONFIRMATION PROCESS, so here’s a proposal of mine from the 1990s. Bottom line:

I propose that the Senate put together its own list of candidates for each Supreme Court vacancy, and forward that list to the President. This list would constitute the “advice” portion of the Senate’s constitutional role. The President could then do one of two things-she could select a nominee from the list, who would be presumed competent based on the Senate’s earlier screening and would be given approval according to some sort of accelerated procedure (much as in “fast track” trade legislation), or she could select someone not on the list, in which case the confirmation process would take place as usual.

Under this process both sides would be encouraged not to be too political in their selections: if the Senate loaded its list with ideologues, the President would ignore it, forcing the Senate to undergo the traditional confirmation process. On the other hand, the President also would be encouraged to avoid ideologues and give the Senate’s list serious consideration, and to select from it so long as its candidates were reasonable, in order to escape the agonies of the full-blown Senate confirmation process as it has become. Furthermore, if the President did not select from the list, there would be a basis for comparison, as people (and Senators) could decide whether the President’s candidate met the same standards as the members of the Senate’s list.

Not going to happen this go-around, I expect, but there you are. I’m not as convinced that avoiding “ideologues” is as good an idea as I thought then, but hey: Recycling is good, right? (Reposted, because I understand my proposal is actually getting some traction, or at least attention, this week).

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