Pete Buttigieg’s Plan to Politicize the Supreme Court

(Bloomberg Opinion) -- Pete Buttigieg seems like a sensible fellow. The South Bend mayor and Democratic presidential candidate, who has become the latest media darling, has interesting ideas. And if progressives worry that he shows a troubling tendency to think for himself, maybe that’s a point in his favor.

But whatever Buttigieg’s virtues, his ideas about how to fix the Supreme Court are bad. As in really, really bad.

We definitely need to do structural reform on the Supreme Court. Adding justices can be part of the solution but not in and of itself, it’s not enough. It’s neither necessary nor sufficient. What we’ve got to do is depoliticize it and one solution that I’ve been discussing in recent weeks is structuring it with 15 members but five of whom can only be seated by a unanimous consensus of the other 10.

Elsewhere, he’s suggested that these 10 justices who get to select the others should be selected by presidents from opposite parties. As a practical matter, this means five Democratic appointees and five Republican appointees.

Others have ventilated the larger problems with court-packing plans, and I won’t rehearse them here. Instead, let’s think about the practicalities of Buttigieg’s idea, which is apparently inspired by this quite intriguing article.

The current court includes five justices appointed by Republicans and four appointed by Democrats. So if Buttigieg’s proposal were currently in effect, no Republican president could add a justice until a Democratic president was able to do so. Even if a Republican won the next five presidential elections in a row, only a Democrat could make an appointment.

This doesn’t sound much like depoliticization. Had a Republican candidate proposed the same idea at a moment when the majority of the justices had been appointed by Democrats (admittedly a long time), it’s hard to imagine anybody on the left describing the candidate as the only one out there talking sense.

Moreover, this structural problem would be permanent. The number of justices would shift constantly, and unstably, as long as departures from the bench failed to track the vicissitudes of the electorate. Those middle five justices — the ones seated only by “unanimous consent” of the others — would almost certainly wind up holding the balance of power.

This leads to a larger difficulty. To require “unanimous consent” of the other 10 justices before the next five can be seated vests a part of the appointment power in the judicial branch. The Constitution is careful to place none of it there. If the Supreme Court can refuse to seat a member, then that authority must surely flow from the document itself — in other words, it already exists. Small wonder that even some supporters of packing the court have labeled Buttigieg’s idea clearly unconstitutional.

Have I mentioned that the idea a really, really bad one?

Buttigieg has also suggested that those middle justices might be drawn by lot from the federal appellate bench, and serve for a set number of years — say, 18. The idea of rotating justices goes back a long way, but has lately been gaining academic support. So has the notion that the justices should serve for fixed terms.

I confess that I have been here for some time. I proposed a quarter century ago choosing the entire Supreme Court by random selection from the federal and state appellate bench, and for limited terms. But my goal, which Buttigieg says he shares, was reducing the importance of each vacancy, not finding an illusory balance of some sort. In any case, I was under no illusion that any of this could be accomplished without amending the Constitution, and I am a lot less certain about the wisdom of these notions than I was in younger days.

There’s also a conceptual problem with Buttigieg’s idea, albeit one that I’m likely in a minority for worrying about. If we divide any part of the judiciary, as a matter of law, according to which party happens to make an appointment, we reinforce the idea that there are Democratic judges and Republican judges — and that they are appointed, presumably, for their fealty to the programs of their respective parties.

This dreadful notion defeats the purpose of having an independent judiciary. After all, if we really believe judges to be so narrow minded — if, in effect, we don’t expect them to think for themselves — then one rather wonders why the judiciary exists. Or, more to the point, one wonders why there is such an onerous confirmation process. If it is assumed that federal judges will do the bidding of each party’s base, surely it makes more sense to elect them directly.

As it happens, I suggested this idea in that same 25-year-old book. And the past quarter century has convinced me that I was right. If we want a Supreme Court that is partisan by design, let’s scrap the absurd machinery of confirmation. It’s a holdover from an earlier age when the people didn’t matter as much.

In an era when one party is on the verge of imposing as a litmus test a candidate’s determination to scrap the Electoral College in favor of direct election of the president, surely we should make space for direct election of the justices, too. Get those who want to sit on the Supreme Court out of the hearing room and onto the campaign trail, where they can make promises to voters instead of senators. Let them face town halls, scrutiny by the news media, the whole bit.

If court-packing and ideological balance are such great ideas, we should at least do them right.

As my Bloomberg Opinion colleague Tyler Cowen suggests.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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