[Third in a series of essays on the current political climate in the United States. These are not meant as definitive fixes for anything but just bringing up ideas for discussion. But, should the become the basis Constitutional Amendments, I expect full credit. 🙂
Did you know that the Judicial Branch of the U.S. Government doesn’t have divisions led by an elected official, and is the only such branch?
The Legislative Branch has Congress, where they are all elected. The Executive Branch have the President and Vice President, who are elected, although I’d argue that the Vice President isn’t elected as such, but is “appointed” by the candidate…when has anyone ever changed their vote based on who the VP was?
But the Judicial Branch has the U.S. Department of Justice, which reports to the Attorney General, who is appointed by the President, and the Supreme Court, which consists of lifetime appointments made by – you guessed it – the President, although with the approval of Congress.
So, who gets to investigate when there is alleged wrongdoing in the Executive Branch? The people appointed by the President? “Quis custodiet ipsos custodes?” I think whichever side of the aisle you are on, you have to believe that at some level this seems wrong. How to fix this is probably a lot more complicated than my previous essay on the Electoral College. But it seems in need fixing.
Let’s start with the Department of Justice. The leader of that is the Attorney General, who is a member of the President’s Cabinet, all of whom are appointed by the President. Changing that could be problematic. But all states also have an Attorney General, mant of whom are in fact elected by popular vote. In my mind, the Attorney General of the United States should also be an elected official, elected on a short cycle, perhaps 2 years, or at least a 4 year post on an opposing schedule to presidential elections. In an ideal case, this post should be 100% non-partisan, but I don’t think there is any way to do that, unless the position itself could be accountable to someone else – but other than Congress, who would that be? Congress has proven itself quite partisan for many years. Given the Senate’s responsibility of the Supreme Court, maybe the House? At least that gets re-elected every two years. Or maybe the Supreme Court needs a makeover? Let’s put that aside for now…
What about the idea that the Attorney General doesn’t run as a political party? Never mind that they may be a member of one, but not allow a designation or appointment? I have no idea how that would work in general – you’d need a non-partisan primary to whittle down candidates to a reasonable number. And/or used Ranked Choice Voting…
So, of the AG becomes elected, what about the Cabinet post? Create a Secretary of Justice – although I think such a position would be meaningless in a way. Or it could be eliminated as a Cabinet post altogether, replaced by separate meetings much like how the House and Senate leaders meet with the President.
As a president of a 501(c)3 organization, I know that the President is ultimately responsible for running the organization. But I also know that I do so at the will of the Board of Directors and membership. In the U.S. that is the voters. But unlike in my position, the voters don’t have the opportunity for a recall or vote of no confidence. The only way to remove a President, other than them resigning, is to impeach, and that can only happen for cases of “high crimes and misdemeanors”, of which the exact definition has been debated and occurs in a partisan House, and the conviction by trial itself, which is heard by a partisan Senate who gets to define the rules of the trial as well as the outcome. I only mention this because as they are responsible for the running of the U.S. Government, they should have the ability to decide who else runs the country. But this is more important that a single charitable organization or a corporation. This is the United States.
Circling back, what about the Supreme Court? The President appoints members to the court, although they get approval from the Senate. These appointments are for a lifetime…nothing else in the U.S. Government is comparable. So, depending on the age of the court, deaths, retirements and impeachments/convictions (only one Justice has ever been impeached, but was acquitted), a sitting President can appoint several Justices during a term. This can change the political balance of the Court for years or even decades, despite where the popular opinion of the citizens currently resides.
Another factor is the U.S. Senate. If it is controlled by an opposing party, they are under no obligation per the Constitution to confirm the appointment, as occurred in 2016. In the opposite case, with a friendly Senate, the confirmation can be done in a very short amount of time, as was the case in 2020.
Here is another oddity of the Court – the Chief Justice is a separate position from the others – it is appointed by the President specifically when the previous Chief Justice vacates the position. It is not a senior position, nor is it elected among the Justices themselves, as it is in other organizations.
Third oddity – the Constitution does not specify a size of the Court. I was originally set at six Justices, and for a while matched the number of Circuit courts established around the U.S. as the country grew. It has been grown and reduced a number of times, depending on the political climate. There was an attempt at what is known as “court packing” back in the Franklin Delano Roosevelt days, although it failed – but with his time in office he was able to appoint 7 different Justices.
Fourth oddity, the Constitution does not specify any mechanism to remove a Justice from the bench in the case of incapacity and inability or unwillingness to resign. Given the lifetime appointments and the potential age-related illnesses, this seems to be a major oversight.
So what are the remedies here? Not necessarily completely baked ideas, but things that pop up in my head:
- Fix the oversight first…allow for the declaration of a Justice to be incapacitated, either temporarily or permanently, either by a supermajority of Congress or the remainder of the Court, allowing at least for a temporary appointment.
- Turn the Chief Justice position into an honorary one, voted on by the Justices themselves, or the most senior serving Justice. I see no reason that this is a separate position.
- Permanently fix the size of the court, or at least base it on a non-partisan metric.
- Maybe limit the terms of the Justices, requiring re-appointment. Base it on the number of Justices, such that no more than one is up for re-appointment. Make re-appointment generally an easier bar than appointment to begin with – maybe a supermajority is needed for removal.
- If not limiting terms, make the appointments subject to voter approval, or even direct vote. If someone is going to represent the will of the U.S. and Constitution for life, make it at least represent the will of the citizens, not the shorter life of the Senate.
- Set an appointment schedule that the President and a confirmation schedule that the Senate must follow.
- Set limitations on appointments and confirmations with relation to a presidential election. Purely as an example, an appointment after July 1st in an election year is considered temporary. This is not unusual – the President can make temporary appointments while the Senate is in recess, where the appointment expires at the end of the Senate’s next session. These are called “recess” appointments and there have been 13 of them. The Senate can later confirm a permanent appointment, but only after the new Senate convenes, which takes place on January 3rd following the election. This is primarily to avoid “spiteful” appointments and rushed appointments to pack a court after there has been a shift in the overall view of the U.S. citizens.
These may not be the only remedies, or the ones that make the most sense. These come from a non-politician looking in from the outside but seeing the general deficiencies which have significantly immobilized the U.S. government for a long time. The primary goal is to allow the government to concentrate on what really needs to be done, rather than playing partisan politics 24/7.