I have a friend with a blog who created a post about the ‘nuclear option’ in the US Senate, which gave me an idea I have decided to expand upon here. I’ll begin with my original comment to his blog and then expand to include my thinking.
For the brief period that it existed, I enjoyed the 8 member Supreme Court and now feel sad to see it return to it’s nine seat form, not to mention the loss of the 60 seat majority and the respect that inferred as a symbol of rational thought, patience and cohesion from the senate – and the nation as a whole.
While it lasted, the eight seat Supreme Court lent itself to a sort of Judicial Republic, in which some areas of the nation had different laws and rules from other areas, that is to say, when a lower court made a decision that could not be overturned nor supported by an upper court majority, the decision was left to stand in that district alone, and was not enforced on the nation as a whole. This created a perhaps confusing set of rules that did not apply to everyone, and instead just applied to the people and states within a judicial district. However, I suggest that this might be more in line with the notion of the republic the founders were seeking, in which different parts of the country were allowed to have their own laws and rules, it just widens the areas from states to regions.
It would be interesting to tease out this idea of a Judicial Republic. Perhaps some system could be constructed whereby a formal bi-partisan committee of senators from the states within each district would put forth nominations for judges to serve in their areas, instead of the President doing so. This would generate collegiality and unity among regional senators needing to find common ground in the selection process for court appointees that would go beyond political party, and perhaps the nominations would still need to be agreed to by the president. This would weaken the movement toward strong presidential powers and create a system where the two branches must work together in order to create the third.
This idea would probably need to be coupled with an eight seat court that attempts to reach a tie instead of a majority, except under clear cases involving the nation’s constitution. That way we can have our ‘originalists’ pretend only they know what the founding fathers meant, and then they can shut the hell up.
Sounds like a complicated constitutional convention. But like most things on this site it’s just ideas. Ideas don’t make money, putting ideas to practice does.