//  5/17/19  //  Commentary

Recently, Democratic presidential candidates Pete Buttigieg and Beto O’Rourke suggested reforming the Supreme Court. They adopted our idea of a “balanced bench,” first proposed in Vox and elaborated on in a forthcoming Yale Law Journal article. The idea is to have a fifteen-person Supreme Court consisting of five Republican-affiliated justices, five Democratic-affiliated Justices, and five more justices unanimously selected by the first ten from judges of the federal court of appeals for a single-year term.

Although (or perhaps because) the proposal is picking up support, commentators and activist groups that support the more aggressive reform of simply expanding the size of the Court by adding seats have questioned the balanced bench’s constitutionality. In a recent Slate piece, for example, Mark Joseph Stern went so far as to declare that that the proposal was “plainly unconstitutional.” This is wrong: there are strong arguments that the proposal is constitutional and consistent with longstanding practices in the federal court system.

The critics’ first objection is that the balanced bench plan would violate the Appointments Clause of the Constitution. This provision states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” On first glance, it might appear that justices inviting court of appeals judges to hear Supreme Court cases for a year would be unconstitutional. But as we explain at length in our forthcoming article (which Stern ignores completely) there are simple responses to this argument.

It has been a longstanding practice for judges to sit for a limited period of time “by designation” on courts to which they have never been formally appointed by the President or confirmed by the Senate.  Federal district court judges (the trial courts) sit on the courts of appeals frequently. Court of appeals judges sit frequently in other circuits and as district court judges. Retired Supreme Court justices sit on the court of appeals. For many years, the Justices “rode circuit” by hearing cases on the lower federal courts. And the Chief Justice of the United States selects judges from other lower federal courts to sit on the Foreign Intelligence Surveillance Court.

In all these examples, the judges in question were properly nominated by the President, and confirmed by the Senate, as Article III judges, thus satisfying the Appointments Clause; they then were permitted to sit on different courts when selected or invited by other judges without requiring a new presidential appointment. These longstanding practices have never been declared unconstitutional, and it is hard to see why the balanced bench proposal is different in kind.

But for those who remain concerned that there is something distinctive about service on the Supreme Court, we have also proposed a simple fix. As part of the balanced bench plan, the President could simply nominate all the federal court of appeals judges as Associate Justices on the Supreme Court. Congress could, by statute, provide that these judges will serve when selected by the ten full-time Supreme Court Justices. Constitutionally, this fix is an expansion of the size of the Supreme Court — something critics of our plan concede is constitutional — to include the roughly 180 court of appeals judges.

A second objection concerns the proposal’s partisan-balance requirement. One theory is that placing a partisan constraint on who the president can appoint interferes with the president’s inherent Article II powers. In addition, there are concerns that potential judges would have to have a partisan affiliation, which might violate the First Amendment. Here too, there are readily available responses.

First, there is significant precedent for partisan-balance requirements within our constitutional system. Many federal agencies have long had partisan-balance requirements; such requirements have never been held unconstitutional, even though they unquestionably limit the President’s authority to appoint whoever she might wish to. More generally, Congress has considerable power to shape the Executive and Judicial branches of government under the Necessary and Proper Clause. And using its powers, Congress has frequently and for more than 100 years restricted presidential appointments by requiring qualifications for specific positions.

Partisan-balance requirements frequently place a limit on the number of appointees that can be from a single political party. The design of the balanced bench is different in that it requires balance between the two leading parties. A system that limits judicial membership to only members of those two parties might well violate the rights of independents and third-party members. Indeed, the Third Circuit recently struck down as unconstitutional Delaware’s judicial nomination system which imposed strict partisan-balance requirements.

But we think our proposal could be designed in a way that addresses that pitfall. Judges could be chosen by lists prepared by the Senate majority and minority leaders, rather than being required themselves maintain a particular party affiliation—thus enabling independents and third-party members a meaningful chance to participate. Indeed, at present, independents elected to the Senate choose to caucus with one party or the other. Alternatively, there are models that both presidents and Congress have accepted, by which the president picks judges from a predetermined list. For example, the District of Columbia Judicial Nomination Commission prepares a list of possible judges for the D.C. courts, and the president selects nominees from that list. A similar system could work for the Supreme Court, and so long as the nominating commission wasn’t required to choose only registered Republicans and Democrats, no one’s First Amendment rights would be violated.

To be sure, there are objections to our constitutional arguments, as there are with all constitutional arguments. And if our proposal takes shape in Congress, there will be time to tweak it further to address any new objections. But simply dismissing the proposal out of hand because it is “plainly unconstitutional” is plainly wrong.


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