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July 5, 2005

After O’Connor, retire the Court

Hanno Kaiser offers one solution to the Supreme Court issue:

Why not eliminate the Supreme Court as a standing body altogether? Inevitable circuit splits would be resolved by an ad-hoc supreme (constitutional) court, which would be in session twice a year. That court would be comprised of randomly selected judges, chosen, for example, from among the judges of the courts of appeal. Each so-selected court would hear and decide cases, selected by the outgoing court. The combination of (i) random composition, and (ii) separation of case selection and decision, would make ideological court-packing virtually impossible, depoliticizing the appointment of judges in the process. Random selection would also likely have a moderating influence on the courts of appeal, because an appeals panel, intent on adopting an extreme position, could no longer expect review by a politically, ideologically, or philosophically sympathetic Supreme Court. […] Genuinely legal considerations would gain in relative importance as a basis for judicial decisions. […] Random selection, as outlined above, would at the very least keep openly political jurisprudence at bay.

One argument against this—inspired—idea is that it would simply politicize all appellate-court nominations. But hasn’t that already happened?

Posted by Stephen at 12:20 PM in Legal issues | Permalink | TrackBack (0)

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