An interesting article, but I think to make the idea enforceable a constitutional amendment would be required, as the appointment power is vested in the President by the Constitution. No congressional statute or pact could deprive the president of that constitutional power.
A vice-justice system would address another potential problem with the Supreme Court, by making it easier for Justices to recuse themselves when there's the possibility of a conflict of interest.
Under the present system, a recusal can shift the balance of the Court in a direction with which the recusing Justice disagrees. I'd be much more willing to recuse myself if I knew I'd be replaced by someone with a similar judicial philosophy.
This just shifts who does the assassinating. It doesn't eliminate the incentives. If you want to affect the court balance you now assassinate an old justice on your side who has a young (or at least healthier) vice justice.
lIt also creates some really nasty procedural problems. Say Roberts dies from a fall down the stairs in his home. Some republicans in Congress allege (as they are incentivized to do) it was actually his wife who pushed him. The DA investigates the case. What happens in the mean time? Does Biden get to appoint a justice in the year the DA spends investigating? Does that mean the DA has the power to remove that new justice by filling charges? What if they offer the wife a slap on the wrist in exchange for a confession? She might want the vice-justice to be appointed and agree.
Ok you say the vice-justice only takes over if the assassin is convicted. Fuck, now the assassin has a *quite strong* case that any jury who might convict him is invalid because they have interests in the outcome (eg whether abortion becomes legal, including for them, depends on their vote). Shit, who hears the appeal on that majorly important issue of law? SCOTUS? Which one?
What even counts as assassination? Is it any charge or murder? What if the justice is in one of those states with 3rd degree murder or with a weird definition of 2nd degree murder. Or overseas? Maybe you say it's federal law. But that's a huge problem bc if the murder didn't happen on us federal land (or other circs) the federal government doesn't have jurisdiction and it can't take on advisory cases. Who is the opposed party?
75 year old justice names 40 year old replacement, lets himself be killed, rinse and repeat - that's not something to be allowed. Also, you would still need the President to nominate the Vice Justice
I don't necessarily agree with your assessment of President Biden's hypothetical response - he would not have nominated someone like Justice Thomas, sure, but I assume he would have asked a Republican politician or a group of them to propose a pick for him and then picked one of the proposals. Remember, this is Joe Biden we're talking about, who takes pride in achieving some bipartisan successes.
I think the best reaction would be for presidential candidates to precommit to doing exactly that - letting their pick be the choice of a member of the other party if a Justice (1) gets murdered (2) for the political purpose (3) of replacing the Justice with one more aligned with the President. Maybe even more specifically "the highest member of the Senate Judicial Committee who belongs to the other party"
I see two major problems with this proposal. Firstly, Doug is right that it would be unenforceable without a constitutional amendment, and I think you massively overestimate the Senate's willingness to bind itself here. What would binding itself even look like? Lets say that today the senate passes a resolution, or congress passes a law, saying that the senate will only confirm the vice justice. In a couple of years a justice is assassinated, the president nominates someone other than the vice justice, and the senate votes 53-47 to confirm the nominee (which they will, if the president and senate are on the other end of the political spectrum from the vice justice). Does the nominee take their seat on the supreme court? I think they do. The constitutional requirements have been satisfied.
Secondly, there is a key disanalogy with vice presidents. When the president dies, regardless of the cause, the vice president becomes president. That means that we don't have to figure out why or how the president died to transfer power, we just have to know that they died. Under your proposal, if we have a dead justice, and there is disagreement about whether the death was from murder or accident or natural causes, then we have a constitutional crisis. We then have an incentive not just to murder justices, but to make the murder look like an accident or old age or something. And if, say, a notorious 87 year old justice dies of cancer in September of an election year where the white house is likely to switch parties, a good chunk of her party will likely come to believe it is an assassination.
If you want to make something like this work, I think the most plausible model is to do it by constitutional amendment, and combine it with term limits. Say, each justice serves an 18 year term, and they have a vice justice appointed at the same time they are, by the same president, and confirmed by the same senate, for the same 18 year term. The vice justice could be required to be an Article III judge as their main job, and could, as Hroswitha suggested, sit in for the justice whenever the justice recuses themselves.
An interesting article, but I think to make the idea enforceable a constitutional amendment would be required, as the appointment power is vested in the President by the Constitution. No congressional statute or pact could deprive the president of that constitutional power.
A vice-justice system would address another potential problem with the Supreme Court, by making it easier for Justices to recuse themselves when there's the possibility of a conflict of interest.
Under the present system, a recusal can shift the balance of the Court in a direction with which the recusing Justice disagrees. I'd be much more willing to recuse myself if I knew I'd be replaced by someone with a similar judicial philosophy.
This just shifts who does the assassinating. It doesn't eliminate the incentives. If you want to affect the court balance you now assassinate an old justice on your side who has a young (or at least healthier) vice justice.
lIt also creates some really nasty procedural problems. Say Roberts dies from a fall down the stairs in his home. Some republicans in Congress allege (as they are incentivized to do) it was actually his wife who pushed him. The DA investigates the case. What happens in the mean time? Does Biden get to appoint a justice in the year the DA spends investigating? Does that mean the DA has the power to remove that new justice by filling charges? What if they offer the wife a slap on the wrist in exchange for a confession? She might want the vice-justice to be appointed and agree.
Ok you say the vice-justice only takes over if the assassin is convicted. Fuck, now the assassin has a *quite strong* case that any jury who might convict him is invalid because they have interests in the outcome (eg whether abortion becomes legal, including for them, depends on their vote). Shit, who hears the appeal on that majorly important issue of law? SCOTUS? Which one?
What even counts as assassination? Is it any charge or murder? What if the justice is in one of those states with 3rd degree murder or with a weird definition of 2nd degree murder. Or overseas? Maybe you say it's federal law. But that's a huge problem bc if the murder didn't happen on us federal land (or other circs) the federal government doesn't have jurisdiction and it can't take on advisory cases. Who is the opposed party?
It would be a mess.
The appointment for life is the root of the problem. Give them 15-20 year tenures instead.
And stop pretending it's a non-partisan position appointed by the President, it's a political decision made by the Senate.
75 year old justice names 40 year old replacement, lets himself be killed, rinse and repeat - that's not something to be allowed. Also, you would still need the President to nominate the Vice Justice
I don't necessarily agree with your assessment of President Biden's hypothetical response - he would not have nominated someone like Justice Thomas, sure, but I assume he would have asked a Republican politician or a group of them to propose a pick for him and then picked one of the proposals. Remember, this is Joe Biden we're talking about, who takes pride in achieving some bipartisan successes.
I think the best reaction would be for presidential candidates to precommit to doing exactly that - letting their pick be the choice of a member of the other party if a Justice (1) gets murdered (2) for the political purpose (3) of replacing the Justice with one more aligned with the President. Maybe even more specifically "the highest member of the Senate Judicial Committee who belongs to the other party"
What if the vice justice assassinates his/her Justice?
I see two major problems with this proposal. Firstly, Doug is right that it would be unenforceable without a constitutional amendment, and I think you massively overestimate the Senate's willingness to bind itself here. What would binding itself even look like? Lets say that today the senate passes a resolution, or congress passes a law, saying that the senate will only confirm the vice justice. In a couple of years a justice is assassinated, the president nominates someone other than the vice justice, and the senate votes 53-47 to confirm the nominee (which they will, if the president and senate are on the other end of the political spectrum from the vice justice). Does the nominee take their seat on the supreme court? I think they do. The constitutional requirements have been satisfied.
Secondly, there is a key disanalogy with vice presidents. When the president dies, regardless of the cause, the vice president becomes president. That means that we don't have to figure out why or how the president died to transfer power, we just have to know that they died. Under your proposal, if we have a dead justice, and there is disagreement about whether the death was from murder or accident or natural causes, then we have a constitutional crisis. We then have an incentive not just to murder justices, but to make the murder look like an accident or old age or something. And if, say, a notorious 87 year old justice dies of cancer in September of an election year where the white house is likely to switch parties, a good chunk of her party will likely come to believe it is an assassination.
If you want to make something like this work, I think the most plausible model is to do it by constitutional amendment, and combine it with term limits. Say, each justice serves an 18 year term, and they have a vice justice appointed at the same time they are, by the same president, and confirmed by the same senate, for the same 18 year term. The vice justice could be required to be an Article III judge as their main job, and could, as Hroswitha suggested, sit in for the justice whenever the justice recuses themselves.