A modest proposal for taking partisanship out of the federal judiciary
Patton was the Democratic governor of Kentucky from 1995 to 2003 and has been chancellor of the University of Pikeville for seven years.
Our very wise Founders established a method for the people to have a direct way to be involved in the selection of our president and our Congress. Then they provided for the two of them to select our federal judiciary. That worked well for almost 200 years. It is failing us now.
There are a few hot-button social issues about which this nation is passionate and divided. Among these are abortion rights, gun rights, gay rights and the separation of church and state. All these issues have and may still come before the Supreme Court. They are all important issues that impact people in very serious ways, but the future of the nation does not depend on them. The important issues that threaten the nation are the national debt, the economy, the federal budget, crime, defense, healthcare and Social Security — things that affect all of our lives every day.
The nation is so divided that we cannot make a rational decision on these important issues.
A major reason is the selection of the federal judiciary. It seems many people vote on these issues, even when they disagree with their preferred candidate on other, more important issues. His stated opposition to abortion was crucial to Donald Trump's election four years ago.
Justices on the high court, and judges on the federal appeals and trial courts, are now selected by presidents mainly because they are either a liberal or a conservative. We now have a Supreme Court with five reliable conservatives, three reliable liberals and one not always reliable conservative. We should have courts where personal beliefs are not an issue. Judges should not be known as liberals or conservatives. Judges and justices should not be selected based on their social beliefs, but instead on their demonstrated willingness to decide issues based on the Constitution and federal law.
This is a national crisis. Article III of the Constitution is obsolete. The only solution is to remove the involvement of the two other branches of the federal government in populating the third branch.
The Constitution makes one of the most important parts of our system of government, the privately owned free press, a bedrock of our system, not beholden to the two elected branches, but rather the watchdog of those two branches. Genius. It has worked pretty well. A lot of misinformation is out there but enough rebuttal is available to permit concerned citizens to discern the truth.
We need to do the same with the federal court system. Turn it over to the American Bar Association. This voluntary organization's members are educated, by and large ethical, and representative of the people. There are about 1.3 million licensed attorneys in the United States. They can protect the people of the nation as well as the free press can. Let's trust them.
I propose the federal judiciary be a career path for young lawyers to pursue. There are now 94 trial court districts with 667 judges and 13 courts of appeal with 167 judges. There is one Supreme Court with nine justices — for now. This is at least 843 highly compensated and secure positions for ambitious and talented young attorneys to aspire to. The courts will continue to expand. There will be more judicial positions in the future.
I propose that the district judges be selected by the licensed attorneys who practice in that district, using secret ballots to select among all qualified attorneys who apply for each vacancy. I would have runoffs between the top two finishers — who would have to be 35 years old with five years of experience as a trial attorney. They could serve until they turned 65 and have retirement benefits for life.
Circuit appeals court judges, in turn, would be similarly selected — but by the district judges in the relevant circuits, choosing from trial court colleagues who want the job. These judges would need to be at least 40 and have been on the bench at least five years when they're promoted, and would have to step aside at age 70.
One proposal for expanding the Supreme Court calls for increasing it to 17 justices and having cases reviewed by subgroups of them but subject to a discretionary later hearing by the full court — the general practice on the appeals courts now. Sounds like a good idea to me.
The eight new justices, and replacements for the current nine, would be selected by all the lower court judges. Judges with at least five years on an appeals court could apply. The top two finishers in the first round of voting would go on to a runoff, and the winner could serve until age 75.
There are about 8,000 new cases filed in the Supreme Court each year. It hears about 80 of them (1 percent, in other words) and disposes of about 100 more without full review. So there are many cases that someone thinks is worth spending a lot of money on but which don't get a fair hearing. This proposal would allow many more cases to get at least an initial high court review.
This will be seen as stacking the court, but changes like this only occur during times of crisis. We have a crisis about selecting judges and justices — and it is destroying the ability of the nation to come together on a lot of other, very serious issues.
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