Demorep1: Truncation. Approval.

[Tom Round]

Greetings all.

(1)  Hugh Tobin wrote, on the topic of a position being left vacant if no 
candidate is majority-approved:

>    For judicial races the option of appointment by the governor should 
probably be added or substituted, so as to avoid excess caseloads, or 
deadlocks due to an even number on a supreme court.

Is this really necessary? My understanding is that, even now, it is quite 
possible to have long-running vacant seats on a court in those US 
jurisdictions (ie, all federal courts, and a substantial number of States) 
where judges are nominated by the Chief Executive and appointed "by and with 
the advice and consent of" a legislative house (usually the Senate or upper 
house).

Eg, after Lewis Powell vacated his Supreme Court seat, it took many months 
and two failed nominations (Bork rejected, D Ginsburg withdrawn) before the 
position was finally filled by Kennedy. During that interim the Court had to 
function with only 8 of its normal 9 judges. As Bork wrote in "THE TEMPTING 
OF AMERICA" (1990), the Court tries to get by as it can by scheduling 
earlier hearings for those cases that do not look like dividing the Justices 
evenly, but this will not last indefinitely. Of course a sub-panel of three, 
five or seven judges could probably handle most civil and commercial cases, 
but for important constitutional decisions (which are the bulk of the US 
SC's workload, since unlike the High Court of Aust it is not a general court 
of appeal on matters of purely State civil and criminal law) this wouldn't 
do. A majority of the whole body would be wanted, to give the decision 
authority (cf Brown v Board of Ed where considerable diplomacy was exercised 
by Earl Warren to make sure the Court's controversial decision was 
unanimous). Moreover it seems rather unfair to tell a litigant, even before 
her case has been heard, "At least five judges think you're going to lose 
already, so we'll go ahead with an eight-judge court" ...

A system where the Executive nominates and the legislature confirms (or 
rejects) judges can thus lead to vacancies if the proposing and the 
ratifying authorities are deadlocked. This in itself can open the way for 
political strategising - eg, you put up one or two obviously unpopular 
proposals first, and save your "real" preference for later. That way the 
ratifying body, under pressure not to look negative, is more likely to give 
in. Many US commentators suggested that, if Reagan had planned for Kennedy 
as his first choice and had only wanted to use Bork and Ginsburg as "decoys" 
to draw the Senate's fire and leave it "out of ammunition" to use on 
Kennedy, he couldn't have done it better than it actually happened!

So perhaps allowing "leave the seat vacant" for elective judicial posts, if 
no candidates are majority-approved, would produce results no worse or more 
catastrophic than can arise under the "advice and consent" system.

I noticed an article in "THE ECONOMIST" back in 1993 or 1994, commenting 
ruefully on the US confirmation system and proposing that the Senate revise 
its traditional practice so that the President nominates several names at 
once, and Senators then vote among these, presumably to elect either one, or 
none, of them - the article didn't specify. Nor did it say which method 
should be used. I assume that the Senate would probably use either 
low-man-out elimination, or election by resolution with indefinite 
re-balloting until one is majority-approved (the second is the method 
dictated by "ROBERT'S RULES OF ORDER", I note ...). This, said "THE 
ECONOMIST", would avoid the cat-and-mouse strategising alluded to above, and 
would still satisfy the Constitutional requirements of Presidential 
nomination/ Senate consent.

I think Lani Guinier also proposed Senate scrutiny of multiple nominees at 
once, although this was aimed at increasing the number of Black, female and 
Hispanic judges by allowing a look at statistical proportionality and 
avoiding the "tyranny of small decisions" when only one is chosen at a time.

(2)  Donald wrote:

>    I would ask you to consider having an even number on the Supreme Court 
at all times. Any small body should be an even number because it is not 
acceptable to have a measure pass by the vote of only one person. If there 
is a vacancy on the body the measure must still pass by the same even number 
that is the majority of the full body.

I would disagree with Donald here. I think, for decisions (whether all or 
only some) on which, it is thought, bare 50% + 1 majority rule is not 
sufficient, one should specify a definite percentage required as a 
super-majority - say 60%, two-thirds, three-quarters, whatever. Raising the 
quota above 50% + 1 indirectly, by having an even number, would allow a 
determined majority to circumvent the requirement by increasing the size of 
the body. A majority of 8 judges equals 75% of the total. Whereas 51 out of 
100 Senators is only 51% of the total, and 219 out of 436 US Reps would be 
barely 50.2% of the total.

The question of the optimum size of the body (which should be based on 
factors like cost, workload, population and area to represent, etc) would be 
distorted by the desire to "get back", as close as possible, to 50% + 1 
control. I think one should specify which decisions require a 
super-majority, as a fixed percentage, and leave all others to be decided by 
a simple majority, with some provision for tie-breaking.

What "a two-thirds majority" requires in practice does vary slightly 
according to the exact numbers (eg, 7 out of 10 or 70%, 67 out of 100 or 
67%), but it does not produce the same consistent, in-built incentive to 
keep adding seats to make the requisite threshold easier for the majority to 
attain.

Tom Round (tomr at orgo.cad.gu.edu.au)

-------------------
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