Why do we not require SC justices

[Trump Must Go]

to receive approval from 2/3 of the Senate in order to be confirmed? They are just as important as any treaty. This would force any nominee to be middle of the road and non-controversial

[The Velveteen Ocelot]

1. Because the Constitution says Supreme Court justices are confirmed

"by and with the advice and consent of the Senate." That means only a simple majority - but before the GOP mucked things up the process was subject to filibuster, meaning 60 votes would have been needed for cloture (ending debate and forcing a final vote):

....Prior to 2017 a nominee could be filibustered once debate on the nomination had begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, however, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican leadership's prior refusal to take up Obama's nomination of Merrick Garland to fill the vacancy. The Republican majority then changed the rules to eliminate the filibuster for Supreme Court nominations.

https://en.wikipedia.org/wiki/Appointment_and_confirmation_to_the_Supreme_Court_of_the_United_States

[Trump Must Go]

5. I understand this, my real question is

Why do we not change the Constitution to require a 2/3 vote? This will end the trend of the selection of justices becoming politicalized and based on a strong ideology.

[The Velveteen Ocelot]

7. "We" would have to go through the lengthy and probably fruitless process

of amending the Constitution. Over 11,000 amendments have been proposed since 1787 but only 27 ever made it. An amendment has to be approved by 2/3 of each house of Congress and then ratified by the legislatures of 3/4 of the states. That's not to say it can't happen, but given the current Congress and GOP-controlled state legislatures it probably won't. The Equal Rights Amendment hasn't even been ratified, and it was passed by Congress in 1972 (and first proposed in 1921).

[elocs]

12. "Why do we not change the Constitution to require a 2/3 vote?"

Yes, changing the Constitution. Easy-peasy.
Say, whatever happened to that Equal Rights Amendment?

[fescuerescue]

16. Because both sides want justices that will further their agenda

The only time such an amendment will be possible will be when both parties agree on just about everything.

There have been a few periods during our history when this is the case.

However those periods are short lived, and there is usually MUCH bigger things to worry about such as a World War, and future arguments over a SC justice are low on the worry totem pole. Historically, we are most divided during prosperous times and most united during difficult times.

Besides. The current system *IS* working. We might not have licked the last 2 results, but we'll probably be happy with the next 3.

[pnwmom]

22. Because that was supported by the filibuster procedure

that the GOP got rid of.

[DetroitLegalBeagle]

2. The Constitution is why

It doesn't specify how many votes are needed for appointments. For treaties, it does.

[Trump Must Go]

15. Since the Constitution does not state how many vote are needed

Could we pass a law that required a 2/3 vote to confirm a SC justice? Since it is only a law it could be changed back, however, it would be subject to a filibuster. Or we could change it to 60 votes, the same as a filibuster and what it had been in the past. But it would no longer be just a Senate rule, subject to the whim of the majority leader.

[DetroitLegalBeagle]

26. Oh, I'm not so sure that's possible

Laws can't change the Constitution. In this case, the issue is that the appointment confirmation power is given directly to the Senate, with no limitations like the Treaty Clause, which immediately precedes the Appointment Clause. It specifies that treaties can only be ratified with the advice and consent of the Senate with 2/3rd majority voting for it. The Appointment Clause, lacking the 2/3rds, part can be interpreted that a simple majority is only necessary in that case.

[Glamrock]

3. Because the rules of the Senate are defined by the majority.

The Turtle could give a shit less about tradition. It's all about power..

[WillowTree]

9. Not in this instance. In this, the rule is defined in the Constitution.

[Glamrock]

21. Didn't he change the filibuster rule before thr Gorsuch nomination?

[The Velveteen Ocelot]

25. Yes, but the 60 vote rule was for cloture - ending debate and proceeding to a vote

in the full Senate. That's a Senate procedure that's not controlled by the Constitution, which says only "advice and consent" for confirmation.

[MineralMan]

4. The answer to that question, like the answers to most questions about

our federal government, can be found in the Constitution. While that document can be changed, it is difficult to change, by design. We often tend to think the Constitution is out of date, obsolete, and should be rewritten. We think that when things aren't going as we want them to go. But, we rarely think about the consequences of making such changes. We should think about that.

In any case, until it is changed, if it is changed, it contains the basic rules that answer your question and many other questions.

[CTyankee]

8. It's ridiculous that we still have the Electoral College.

The president should be elected by the people in this day and age.

[MineralMan]

10. Until the Constitution is changed, we will still have it.

However, we need to be very careful about making changes, and always think about worst-case scenarios.

There are risks in eliminating the Electoral College in some situations. It could work against us as well as for us.

[CTyankee]

11. Other democracies exist very well by not having the EC.

[The Velveteen Ocelot]

14. Almost all other first-world democracies have parliamentary governments.

Under a parliamentary system an electoral college would be completely impossible; those governments allow for elections of coalitions of multiple parties. An election under our system, because of the electoral college, is essentially a binary, zero-sum game.

[CTyankee]

17. I don't see "coalition of multiple parties" and being relevant.

No, we don't have a parliamentary system but we do have broad bi-party support of legislation. Or we used to have it. Legislators vote across party lines all the time. The people broadly support the ACA.

[The Velveteen Ocelot]

18. Here's the problem, I think:

In a parliamentary system, the executive and the legislative branches aren't separate; the prime minister is the head of government but is also a member of the parliament, which can appoint and dismiss the head of government; and in some cases the parliament itself, or the prime minister, can dissolve the parliament and call for a new election. The prime minister is chosen by the parliament, usually through the votes of multiple-party coalitions.

How could an electoral college, which elects a president based on the votes of each separate state, fit into such a system, especially when it is almost impossible for a third-party to acquire enough votes in a single state to get that state's electoral votes? And if it does, that party's candidate won't win the election but will only act as a spoiler for the party from which it takes votes. If you have a parliamentary system, multiple parties within the parliament can form coalitions of enough somewhat like-minded members to elect a prime minister, who for that reason is almost always something of a compromise. This also tends to deter extremist factions from seizing power.

[CTyankee]

19. I probably need help with my civics so help me through this.

We kinda have something like that now. That is, our VP of whatever party is in power casts the deciding vote when there is a tie in the Senate vote. And the VP is the president of the Senate.

Sorry to be so fuzzy. I am sick in bed and definitly not up to par...

[The Velveteen Ocelot]

23. The *only* constitutional duty the VP has, besides being the backup for a president

who can no longer serve on account of being dead or incapacitated, is to break a tie in the Senate if a vote is 50-50. That's the only substantive job the president of the Senate has, and he very rarely has to do it. Otherwise he has only procedural duties (to preside over the Senate and call it to order) but no actual power in the Congress.

The Prime Minister in a parliamentary system is both a legislator with the same power as other legislators, and the head of government. That means they are also the head of a cabinet and the leader of the ministers in the executive branch of government. Because the PM is also the head of the executive branch, and as such the chairperson if the cabinet, they can chose or fire other members of the cabinet. But there is no equivalent of a vice president in a parliamentary system and no automatic succession. In Britain a new PM would be selected by the Parliament.

Hope you feel better soon.

[CTyankee]

24. good post. thank you.

[Algernon Moncrieff]

6. At some point, we need to amend to set some SCOTUS rules

- 9 justices
- President appoints; Senate has 90 days to hold an up or down vote. If they don't hold a vote by day 89, they are all subpoenaed into Washington and locked in the Senate chambers until a vote is completed.
- 20-year service limit
- 3/5 or 2/3 to confirm

[WillowTree]

13. "3/5 or 2/3 to confirm" With that rule in this political climate, no one would ever be confirmed.

[Algernon Moncrieff]

20. Counterpoint: an older jurist with a non controversial record

At the end of the day, we'd be better served by experienced jurists with minimal ideological bend rather than finding the youngest judge out there that agrees with whoever is President.