| I have a fantasy solution that I know will never be implemented, but in my mind resolves all objections to expanding the court. Promote all eleven judges in the DC circuit court of appeals to the Supreme Court and leave the appeals court empty. For each vacancy that occurs on the Supreme Court, the president gets to pick one judge for the appeals court, until the Supreme Court justice count is back to 9 and the appeals court judge count is back to 11; at which time things go back to status quo ante. This would allow the Supreme Court to be rebalanced without the president packing the court with partisan choices. Rather, it respects the record of judicial confirmations for the appeals court going back almost 40 years and several presidential administrations. It would increase the number of perspectives on the court and make the Justices work harder to find consensus, rather than the majority being able to lazily fall back on pet legal theories that are out of the mainstream. It would counter and largely nullify the Republican strategy of targeting the Supreme Court with nomination of extremist and underqualified candidates with significant questions about their backgrounds, and confirming the nominees with dubious political maneuvering. It would be hard for Republicans to escalate; i.e., if a Democratic president added 12 slots to the Supreme court, what's to stop a Republican president and congress adding 20 more at first opportunity, and so on. Republicans could choose to elevate another court's judges to the Supreme Court, but that would tend to further balance the Court and make decisions more unpredictable, rather than produce a clear partisan advantage. It would take the Supreme Court nomination issue out of presidential politics for a generation. |