We live in a country where people who survived school shootings in their youths are now coaching their children through school shootings.
If this wasn’t the country we wanted, it wouldn’t be the country we have.
A civil response?
I supported the death penalty when I was a teenager, but I stopped during my senior year. I remember my parents discussing it on occasion; my mother supported it while my father did not. My stance was pro-capital punishment, initially. But then two things happened that pushed me into the “anti” camp, and for the most part, that’s where I’ve remained.
The first thing was one day my physics teacher, Mr. Eaton, talked about it. Mr. Eaton was a fun guy and he knew his physics, but he also tended to go off-topic in his classes. Like, wildly off topic. He’d veer into stuff that had absolutely nothing to do with physics. (This made his wild dash to cover required material toward the end of the year when time was running out…interesting.) So one day he talks about the death penalty and how he doesn’t support it, and the main point of his that I remember is pretty obvious now, but I hadn’t considered it then: “Does anybody really think,” he mused, “that our criminal justice system actually gets the right person one hundred percent of the time?” The point was that there is no way we’re not incarcerating innocent people…and it follows that in a country with capital punishment, there is also no way we’re not executing innocent people.
That should be a deal-breaker, right there. But I have heard people shrug at even that point, saying that executing the occasional innocent person is a price they’re willing to pay. Often times they’ll couple that creepy point with an even creepier observation that the “innocent” person is probably not a good person, and they’re probably guilty of something. When you couple this creepy logic with the simple fact that capital punishment in America–and honestly, punishment in general, of any kind–is wildly tilted against people of a certain skin tone, well, the whole “I’m sure they’re guilty of something” logic crystalizes as something else.
(By the way, where I lived was a very conservative area–still is, actually, and there are many parts of New York State that are as red as any Alabama county you might name–and I remember that day listening to multiple 16-and-17-year-old classmates saying “I don’t want my tax dollars going to keep some murderer alive!” And I was thinking, “Dude, we’re teenagers, we’re not paying taxes yet.” Obviously they were getting this from their parents. Suffice it to say that rhetoric along the lines of “My tax dollars!” isn’t convincing, applied to positions on either side.)
The other thing that happened during my senior year was the execution of Ted Bundy. Now, if you made a list of the Top Ten Human Beings Of All Time Who Deserved The Death Penalty, there’s a pretty good chance Ted Bundy makes the cut. That’s how purely evil the man was.
But I remember watching news footage of his actual execution and noticing something disturbing. There were people at the prison gates and along the road to the prison, hundreds of them. Way more than could ever have been actually personally affected by Bundy’s crimes, as prolific as he was. And they were cheering and hooting and hollering and holding up homemade signs like at a football game: FRY BUNDY FRY!!! and BARBECUE TED!!! (The execution method was the electric chair.) There was dancing and fireworks, and the finale of the celebration came with cheering the departure of the hearse with Bundy’s body aboard.
They were having a tailgate party for the execution of a serial killer.
I couldn’t support capital punishment after that. Turning it into an occasion for vocalizing societal bloodlust did not sit well with me then, and it doesn’t sit well with me now. I cannot get there. And this has all been brought home over the last few days, following a botched execution of a Tennessee woman who also committed a jaw-droppingly horrible crime. I guess I still want to believe in the idea that we’re better than our worst criminals, and that our treatment of them needs to reflect who we are, and not who they are. Unfortunately, a lot of the time our treatment of our worst criminals actually does reflect who we are, and I think that’s something we should think about more.
Ultimately, my final reason for not supporting the death penalty is that time and time again I have seen that, as a response to the actions of the worst of us, executions do not bring out the best of us.
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Twenty-Five
It’s been a quarter-century since the attacks on the United States on September 11, 2001. I barely know how to process that it’s been that long. Over on Threads, someone asked these questions about the experience of that day, and I’ll answer them here:
1. Where were you when you found out about 9/11?
I was in my car, on my way to work. This was when I was working in pharmaceutical telesales, and my shift started at 9:30am. I got in my car and put on NPR, which was my habit at the time, and they were reporting on the breaking news that “an airplane” had struck one of the World Trade Center towers.
2. How did you feel in that moment?
Honestly, mildly disturbed, but that’s about it. I got the news so early that it wasn’t even clear yet to anyone listening to news that it was as bad as it was. I had the luxury, for a few minutes, of thinking that it was a Cessna or a Piper Cub or some such small plane. There would likely be a few deaths, and it’s scary, but that’s about it. I don’t remember how quickly the sheer magnitude of what had happened became clear. I don’t remember when, exactly, I learned that the second plane had hit; I’ve just looked up the actual timeline of events and the second hit came at 9:03am, so I likely learned about that while I was still on my way to work. It was just after we all got to work, where we had the radio on immediately, that the plane hit the Pentagon…and I recall a great deal of confusion over the rest of the day. I remember a report of a car bomb detonating somewhere in Washington, and there were rumors of a fourth plane whose fate did not become clear for a while. It was just a staggering, horrific day, and it was the greatest cognitive dissonance I could experience, still making telesales calls in the middle of all this. I do still remember the gasps in the office when the news came over the radio that one of the towers had collapsed.
3. Did 9/11 directly affect your family?
In terms of knowing anyone killed or injured? No. But my father, a math teacher at St. Bonaventure University, had a former student who was working for Cantor-Fitzgerald and who died that day.
At the end of that week, we–myself, The Wife, and The Kid–were embarking on a road trip to Iowa to visit The Wife’s family. My plan was to cash my paycheck that week and use it for vacation. At that company, our paychecks were processed at the corporate office in Baltimore and then sent via FedEx to Buffalo to be distributed to workers in the offices here. But the FedEx planes were grounded, so…I had no paycheck. My boss actually loaned me the $400 out of her pocket. She was a good boss, I wonder what ever became of her….
(That’s the job I was eventually fired from because I was honestly very bad at it.)
4. Did you leave school home or work after the attacks?
No, we all worked out the day. But none of our hearts were in it.
Over the next bunch of days, as the enormity of what had happened settled and the scope of the losses became known…and as the stories from the day started to crystalize, the mood became darker, so much darker. I found myself unable to listen to music for a long time after 9-11. This, a work called Elegy by composer Mark Camphouse, is the first piece I was able to listen to all the way through. Though Camphouse never intended this association, for me Elegy is part of my set of 9-11 memories.
Finally, at some point after 9-11–probably a month later, maybe two–I found myself writing a story. I haven’t shared it here in several years, but here it is:
The City of Dead Works
There is never any rest for me, the Ferryman of the Dead.
I pole my barge across the black waters and up to the pier. So many wait this time, many more than usual. I wonder what has happened, what event has sent me this many. “Come aboard,” I say. “I will take your coin for passage.” One by one they file past me, each handing to me the coin that they never knew they had. It is the coin which determines where they shall be taken to rest, its metal shaped and determined by life. The coins of these dead are gold, every one of them purest gold. Six thousand come aboard my barge, and each has passage for the farthest and greatest of destinations. In that moment I know that something truly dark has happened; the gold coins are always forged in moments of darkness. I am the Ferryman. I can give them no answers to what lies behind their haunted, questioning eyes. I can only take them on this, the last of all journeys.
When they are all aboard I take up the pole and push away from the pier. The barge always feels the same, no matter how many stand upon its decks. Whether six or six thousand, it is all the same to me. I guide us out onto the River Styx. Some of the people look worried, but there is no need for fear. This river can do them no harm. They are already dead.
This is to be a long journey, I know – it always is, to this destination. As I guide the barge through the black waters, I look on the faces of those who have come to me. As different as these people all look, they all have the same expressions of shock, disbelief, and withering sadness. Here is a man of business, talking into a cell phone. He is trying to call someone, anyone, who will tell him that it’s all a dream, that it didn’t happen, that he didn’t die in a blast of fire, smoke, glass and steel. There is a mother who is explaining to her daughter that they won’t be going to Disneyland after all. And there, a group of firemen stand together, realizing that soon they will meet all their brothers-in-arms who have gone into the infernos before them. So many now – colleagues once in business and now colleagues in death, people who have never before met but now have the gravest thing in common. As the current takes hold, I look back at the pier. There are more gathering there. There are always more. They will wait. Time does not exist for the dead.
“Please,” a young man says as he turns to me, “I have to go home to my daughters.”
“You are going home now,” I reply. “To the home where all eventually return.” Two black rocks slide past on either side, the rocks that mark the passage of the circling Styx.
“This can’t be,” a woman cries out. “My mother needs me.”
“She will be with you soon enough.”
“When?” Her voice pleads, and yet there is no solace that is mine to give.
“I cannot say,” I reply. “The Ferryman has no hand in Fate.”
The tears come then, tears from the six thousand that run over the gunwales and into the river which has been fed by tears for centuries. All tears are born in the River Styx.
“Where will you take us?” someone asks.
“To the place you are promised,” I answer. I recall the words of a poet: Will there be beds for all who seek? Yea, beds for all who come.
One our left we approach the Hills of the Damned, an endless stretch of shattered lands which reach away into the blackness. The waters echo with the cries of all those who have been taken to the Hills for the agony they have brought on the living. I consider the bag of six thousand gold coins, and I realize that I will have to journey to the Hills this day. There will be a person, perhaps more, who will pay me with a coin of black tin; but not on this journey. As the hills recede behind us, the unending cries of the damned become fainter and fainter until they are drowned out by the lapping of the waters upon the sides of the boat and the marker stones that we pass. The six thousand fall silent, each realizing that it is not a dream. I would offer solace, but as ever I cannot. I am the Ferryman.
We come around a particularly dark bend, and before us lies a very wide expanse of water, as if the Styx has become an ocean – which in some sense it probably has. And beyond that expanse are the thousands of twinkling lights that I have come to know so well. One man, a fireman, sees them too. “What is that?” he asks.
“It is the City of Dead Works,” I reply. The lights of the city glow on the horizon, and every one of the six thousand turns toward them as the Styx impels us onward. As we come ever closer to the city, the glittering lights reflect off the black water.
“I don’t understand,” someone else says. “The City of Dead Works?”
“Aye,” I reply. “Behold!”
From behind us, golden light: the Sun of the Dead is rising as it always does when the dead come near the City. Above us the firmament is turning purple, then blue; soon the light of the Sun will illuminate the City of Dead Works. As the sky lightens, the true scope of that city becomes plain: it stretches away into the land, farther than any eye could see. Not even the highest-soaring raven, cavorting in the breezes and zephyrs of the dead, could take it all in. It is bigger by far than any one city ever built by the hand of men, because it encompasses some part of all of them. Perhaps it is bigger than all of the cities ever built. Now the sun’s first rays come up behind us, and the first buildings can be seen down by the water.
“That one looks Egyptian,” a woman says.
“The Great Library of Alexandria,” I tell her. “Once the greatest repository of learning the world had ever seen, now only a memory to the living and a reality only to the dead.”
A man points to a building high upon a rock. I nod.
“The Temple of Solomon,” I say.
“There are ships in the harbor,” says another. Thus for him I name the ships: Arizona, Indianapolis, Lusitania, Bismarck, Wilhelm Gustloff, Cap Arcona. And many, many others. I scan over the impossibly vast city and spot Dresden, as it was; and beside it the cities of Hiroshima and Nagasaki. And how many smaller villages, tucked into the hills beyond the City? None can say. The Sun of the Dead shines upon those hills now, and the great stone statues in the likeness of Siddhartha Gautama.
“I don’t understand,” a young man says. “Why this City? Why here?”
I only shake my head as we continue to float by the City. I do not point out the fairly small, nondescript office building that sits near the water. It is not a particularly remarkable building; nor was it, really, until the fuse was lit. The six thousand almost don’t recognize it.
Almost.
Not one word is uttered as we slide past the Alfred Murrah Federal Building. Then we turn away from the City of Dead Works, and head again down the waters of the Styx toward distant hills and the place where these people will join their brethren.
“Who lives in that city?” It is a priest in a fireman’s coat.
“No one lives there,” I tell him. “The City of Dead Works is not for people. It is for the buildings and the ships. It is for the books and the music, the sculptures and the paintings which are gone forever. It is for everything destroyed by craven people in the name of foolish wars, for everything judged forfeit in the face of transitory desires.”
The Styx takes us into the Golden Hills. Soon we will be there, and the six thousand will go where they belong. And then the Styx will complete its circle, taking me back to the pier where more dead await.
“We will be there soon,” I say. “Soon we will be at the Elysian Fields, where all heroes go – for that is what you all are. It is what you have bought with your lives, with the shaping of your coins into gold.” No one replies. We near the last bend now, and before us lie the Elysian Fields, where peace reigns and where heroes dwell; where all is light and voices are always raised in song. The Sun of the Dead shines warmly on Elysium.
But they do not see it. They, the six thousand, all gaze back behind us upon the City of Dead Works. It will soon be behind us forever as we round the last bend of the River Styx into Elysium. I know they all need one last look upon that City, and I do not grudge them that. For myself, I do not look back; the eyes of the Ferryman are ever forward. But I know. I know that the City of Dead Works is different now. I know that it has changed. I know that the people who come with me now to Elysium, the dead around me, look back on the two soaring towers of steel that now rise above the City where there had been no towers before.
I know these things.
I am the Ferryman of the Dead.
Even now, 9-11-01 is more history than memory, and it will be more and more so with every passing year. There are adults today in the work force for whom 9-11 is only something they have been taught. There is an entire generation for whom it is not a memory; 9-11 is as much a point in history as 12-7-41 is for me and my generation. Perhaps this is the gentle side of the poem about Ozymandias: memory passes, but so does the tangible pain even as our mighty works are torn down and buried in so much sand and dust.
Nevertheless, those of us who lived that day remember.
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“A red sun rises. Blood has been spilt this night.”
“Timeline? This is no time to talk about time! We don’t have the time!…what was I saying?” (Cmdr. Deanna Troi, STAR TREK FIRST CONTACT)
OK, fine, I guess I’ll put all of my thoughts on Daylight Saving Time here, since there’s a really good chance we’re going to adopt Permanent DST in the United States, which seems to me a terrible idea. This is in no particular order and is not structured in any way.
:: It is simply beyond dispute at this point that from a standpoint of human health, maintaining permanent standard time would be the best option. Circadian rhythms are best reflected by standard time, and doing away with the disruptive effects of twice-annual clock changes would also be a good thing. There is simply no questioning the biology on this.
:: Americans worship a lot of things: cars, guns, the military. We also worship sunlight, and oppositely, we generally do not like the night very much. This is a very odd cultural artifact that leads us to doing things like pushing for permanent Daylight Saving, on the basis that “I want to have a little light when I get off work!”
To that I ask, “Why? For what?”
Taking those times in the image above: my work shift starts at 7:30am and ends at 4:00pm. Now, I’m rarely actually out of work at 4pm; there’s usually a bit of wrap-up time, and quite a few days I have to stick around to do a bit of shopping. So, many days it’s close to 4:30pm by the time I actually depart work. At that point, by this time in the graphic above, there’s 1 hour, 12 minutes left of daylight.
My commute is about 15 minutes. Now, by the time I get home, there’s less than an hour of light. I have to bring in anything I’ve purchased, put it away, grab the mail, let the dogs out, greet The Wife if she’s working from home that day, and then change clothes and shower. By the time all of this is done, the available daylight is down to well under 30 minutes.
And there’s something else: note when all this is taking place.
January.
An extra hour, on the back end of my day when that hour is already taken up by post-work rituals, during the coldest time of the year. And I’m to believe this is a benefit? Give me a break.
:: As a matter of public policy, there is a lot to criticize about time in the United States. I’d say the biggest fish we could fry here wouldn’t even be fixing DST, but fixing time zones. A lot of New England should probably be on Atlantic time. Part of the problem with the discourse here is that we have a geographical situation where on January 1, someone in Portland, ME is watching the sun set at 4:15pm. Someone else in Kalamazoo, MI will watch the sun set at 5:21pm…and both cities, which are nearly a thousand miles apart, are in the same time zone. This is absurd.
:: No, I don’t know how we fix the time zone issue. Smaller time zones, separated by half an hour? Maybe. But I’ve always noticed that people I encounter online who really like Daylight Saving Time and who think keeping it year-round is a great idea are people who live in the eastern reaches of their particular time zone, making sunset earlier for them than most others. I get that concern, really.
:: The strange argument I keep hearing is along the lines of “Now you’d have more daylight to spend with your kids!” and “Now you’ll have an hour to enjoy your day!” Where did we get the idea that you can’t do any of those things if it’s not light out? Where did we get the idea that the only fun and enjoyment we can have in life can only take place in sunlight? Are we all coming home in utter darkness to sit, lonely and dejected, staring at a wall by the light of a single guttering tallow candle?
The one genuine, and kind of convincing, answer I’ve ever received to my eternal question of “What the hell do you all need all this LIGHT for at the end of the day, anyway?” came from a local friend who is also a sports coach for young people. In reply to a version of that question, he simply answered, “Playing baseball.” I really can’t argue that particular point. If the park you play in has no lights, and you want to play a lot of baseball, then yes, later summer light is clearly your friend.
But I keep coming back to my original thought: WHAT IS SO DAMNED AWFUL ABOUT NIGHT AND DARKNESS? Seriously, why do we venerate sunlight and hate the night so much in this country? I will never understand the American fixation on sunshine and light. Is the night not beautiful? Is it not wonderful to watch the world at Golden Hour become the world at Blue Hour and then see the night?
:: In the end, fixing the problems created by DST, and by changing the clocks twice a year, is likely more complex than this one simple bill will achieve, and it’s pretty clear to me that this bill will just make things worse. Sadly, we are not living in a time when American government is particularly oriented toward making nuanced policy changes. To the extent that we are able to address policy at all, our approach seems to often boil down to: “We have to do SOMETHING, and THIS is SOMETHING, so therefore we have to do THIS.”
Over the past few days I’ve seen a bunch of Congress people and Senators posting to social media: “Look what we did! We’re fixing an issue! Yay!” And look, I’m never one to get deep in the weeds of “Why are you thinking about X when Y is so much worse,” but…seriously, this was a priority, but fixing just about any other issue was not.
Anyway, I hope this bill dies and if it doesn’t and it becomes law, well, I reserve the right to point back at this post when a whole lot of the country concludes that this was, and is, a bad idea. Sadly, this being America, it won’t be the first time.
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250
“A court that will do what it is told”
Five years ago, I wrote this post about my thoughts on reforming the Supreme Court. My thoughts were intended as an “intro” to the topic, and I got some interesting commentary response. I have been thinking about the topic again, because the Court is an even bigger problem now, to the point that addressing its problems is rapidly becoming essential, once–and if–saner voices take elective power in Washington. I present below the text of that original post of mine, a lot of which I still think might be a good way of approaching things; lifetime tenure needs to go away, but so does the “accidental” nature of which President gets to make a lot of appointments to the Court and which one does not. I also gave a lot of thought to the shenanigans of one Senator Mitch McConnell, who used the power of the Senate to simply deny a Democratic President a Supreme Court appointment. My attempt to address this got some interesting pushback, and I’m open to suggestion, but I still believe that fundamentally the Senate cannot be allowed to do nothing when an active Supreme Court nomination lies before it. Maybe in addition to requiring a vote, and forbidding the Senate to adjourn while a nomination lies before it, we also change the voting procedure so the vote is not one to confirm, but to deny, with a 3/5 majority required to decline a nomination. Also, re-reading my post, I see that I wrote against expanding the Court. I have changed my mind, and frankly, expanding it to 21 would be OK with me.
Before delving into my own thoughts, though, here’s a video on the topic of our corrupt Supreme Court by the always-brilliant Jamelle Bouie. It’s always worth remembering that our government was structured such that each branch’s power would be checked and balanced by the other two, and that the current state of affairs–in which Congress, run by Republicans, has completed abdicated its responsibility to check or balance anything–is a voluntary one, and also a political one. Nothing in the US Constitution establishes the Supreme Court as a de facto royal body that governs by decree, and in fact, there is a great deal of power that the Congress holds over the Court.
Here is my original post from five years ago:
Here’s something I’ve been thinking about for quite a while: how I would fix the Supreme Court. Obviously, I’m not an expert and am quite possibly wrong in many ways, but you have to start SOMEWHERE, right? Here’s my proposed Amendment which would fix the Court, with interspersed commentary.
WHEREAS it is sufficiently clear in 2021 that the current structure of the United States Supreme Court has proven too easily forced by concerted effort by various factions to extended periods of ideological extremity, I propose the following alterations in how the Court is structured.
While I’m sure American conservatives are all kinds of gleeful that they have finally, after years of focus and hard work, managed to create a Court majority that will favor their ideological goals for quite possibly decades to come, I hope most Americans will agree that this is not a desirable state of affairs.
1. The Supreme Court shall consist of 9 seats, with each Seat being held by one Justice.
Why 9? Why not engage in the current liberal wishlist of bumping it up to 13, thus allowing President Biden to name four liberals and immediately grab the balance of the Court back? Well, as much as I’d be on board with that concept in my angrier moments, I’m trying for a more nuanced approach right here. Currently the number of Justices is set by Congress, and there’s no reason to believe that even if the Democrats in Congress pulled this off right now that a future President Hawley (God help us all) and a Republican Congress to come wouldn’t just do the same thing right back, and somehow find a weaselly way to make it worse. Remember, they were quite content to engage in reverse Court-packing by holding the number of Justices at 8 until they could control the nominee. I’d hardwire the 9 into the Constitution at this point. Also, there’s math involved. And why am I referring to nine seats, instead of nine Justices? Read on! We’re getting to the meat of it now:
2. One Seat on the Supreme Court shall be vacated on July 5 of each year numbered Oddly, to be filled by an individual named by the sitting President of the United States, with the nominated Justice taking the vacant Seat upon confirmation by a simple Majority vote in the United States Senate.
3. The Senate shall bring any nomination of a Supreme Court Justice to its Floor for a full Confirmation vote within TWO WEEKS of the President’s official Nomination of said Justice, regardless of whether the Senate has concluded its Business in the course of Advising and Consenting. In the event that the Senate fails to confirm a nominated Justice or Judge on three consecutive Votes, the President shall name an APPOINTED JUSTICE to serve on that Seat until either the swearing-in of the Next Senate or the beginning of that Seat’s next term, whichever comes first. No Nominee for the Court, having been rejected by full vote of the Senate, shall be eligible for Renomination before the beginning of a new Senate.
4. Upon confirmation and installation, a Justice shall hold their Seat for a single term of EIGHTEEN years, at the conclusion of which their Seat shall become again vacant and the sitting President shall name their Successor.
OK. Let’s unpack. What am I getting at here?
First: No more lifetime tenure to the Court for judges. That shit is OVER. No more nominating young judges who will then sit for thirty or forty years or longer. Yes, I’m quite annoyed at the fact that I may well need to adjust my diet to include large amounts of broccoli at this point if I have any hope of seeing a liberal court in my lifetime. Moreover, I don’t think a President, any President, should be able to extend their legacy so far into the future, either through chicanery or by accident of timing or some combination thereof.
It is utterly absurd to me that our 45th President, in his one disastrous term, was able to name three Supreme Court Justice while Presidents Carter, Clinton, and Obama combined for four in their twenty combined years in office. That 45’s nominations came respectively via Mitch McConnell’s gaming of the rules, Anthony Kennedy’s oddly convenient decision to step down, and Ruth Bader Ginsburg’s passing (which gave McConnell a chance to demonstrate just how low his actual commitment was to his previous deeply held principle of not voting on Judicial nominees in election years) isn’t relevant, but we should make sure that this kind of gamesmanship is much harder to pull off, moving forward.
However, while I do favor eliminating lifetime tenure, I do think it’s important to remove the Court as much as we can from the normal cycles of political life in Washington. So I have Justices serving eighteen years: a good long term that gives them political independence that lasts well beyond the reahc of a single Presidential term. As of this writing, eighteen years has spanned four Presidents, two from each party.
Next: Well, since we already know the Mitch McConnells of the world will simply change rules any which way they need to in order to make sure that Republicans are the ones controlling the judiciary (and not just the Supreme Court–look at the ways they changed rules for Federal judicial appointments constantly starting in 1995 and then with each subsequent time they either had the Senate, the Presidency, or both), I suppose we need to hard-wire into the Constitution that the Senate will vote on Supreme Court nominees. As a writer whose work involves occasional villains, I have to admit that McConnell’s simple tactic of just not voting at all on Merrick Garland was some Class-A villainy in its ruthless cunning. So, that shot having been fired once, I’d like to take that one permanently out of circulation.
But! Here’s the thing: since 1981–the last forty years–only 22 of those years, barely more than half the time, has seen a President and the Majority of the United States Senate serving from the same party at the same time. It’s easy to see a Republican Senate saying to a Democratic President: “OK, we’re required to give your nominee an up or down vote, so we’re just gonna keep voting your nominees down and run out the clock that way.”
Well…no dice there, either. Three times in a row and the President gets to fill the seat on the Court temporarily, until either the Seat’s term ends (i.e., the 18 years ends) or a Congressional election happens and a new Senate is seated. Then the whole thing starts up again, and the President can nominate the person he or she chose in the first place. Also, note the required time frame: just two weeks, and the Senate is required to vote. If they can’t figure out if they’re on board with a Justice or not within two weeks, they shouldn’t be in that job, and obviously the possibility of any filibustering has to be neutered right in the Constitution. (But ixnay on the President just nominating the same person three times and then seating that person anyway. We still need to take the Senate’s “advise and consent” thing a little seriously.)
Oh, and I said up above that there’s math involved in picking nine judges? Well, assuming an 18-year-term, if you have more than nine judges, then eventually you get to a situation where multiple seats are opening up in odd years. This system guarantees that every President will make some mark on the Supreme Court, as every President will name at least two Justices. But I don’t want a President naming as many as eight. Of course, you could get around this by extending the term of a Justice’s service to twice the number of years as there are sitting Justices, but then terms start getting uncomfortably long again.
All right. We’ve got our Justices serving one eighteen year term on the Supreme Court. Also note that they’re ineligible to hold any other judicial position in the country after they leave! I’m not sure if that would be a big deal or not, but you wouldn’t get to have a Republican President give us a bitter pill like Brett Kavanaugh and then, if his term happens to end during another Republican presidency, just get re-nominated for another 18 years. Also, the eighteen-year-term refers to the seat on the Court, not the specific Justice holding it. In this respect it would be like the Presidency: the term is four years, but if the sitting President dies and the Vice President becomes President, they don’t get four new years: the Presidential term ends at noon on January 20 every four years, no matter what. Likewise, if a Justice dies fifteen years in, obviously you need a replacement–but you do not get to reset the clock with someone to your ideological liking. No getting around it: eighteen years. That’s it. So we would have this provision:
5. In the event that a Seat on the Supreme Court becomes vacant sooner than the conclusion of its Eighteen Year Term, the sitting President shall name a Justice to that seat, also pending Senate majority confirmation, to serve only the remaining time in that Seat’s term, at the end of which that Justice shall leave the Court.
Now, we well know that for all the “the Courts are apolitical!” talk we hear a lot, the fact is that the Courts and people on them are as much a part of the political life in this country as anyone else. But to help foster as much political independence as we possibly can, I’d add this:
6. No person, having held any portion of a Seat on the United States Supreme Court, shall be eligible for any Senate-confirmable position upon leaving said Seat, or for any Judicial position in the United States; also, no member of that Justice’s family shall be eligible for any Senate-confirmable position for a period beginning with their assumption of that Seat until five years after their departure from it.
In short, no “Hey Judge, I’ll make your kid or your wife Ambassador to the Bahamas”, and no “Hey Judge, if you’re looking to retire early, I might need a new Ambassador to Sweden”. Also, once you leave the Supreme Court, that’s it for your legal career. And really, there’s nowhere else to go after that but write your books and be on a corporate board or two, right? No, I’m not worried about what our Justices will do in their now-much-longer retirements. They’ll make out just fine, I suspect.
Of course, if you’re going to limit the terms, then you have to schedule the terms as well. If we just wait for the existing judges to die or retire and then start the eighteen year thing, then you’d have nominations clustering at eighteen year intervals from whenever those passings happen. So, one seat will open on the Supreme Court every two years, during the odd-numbered years to minimize the degree to which federal-level elections play a role in the politics.
7. The transition to this prescription for Supreme Court tenure shall begin on July 5 of the first odd-numbered year following Ratification of this Amendment, with pre-existing terms ending in reverse order of service on the Court.
You have to make your transition some way, right? For my purposes, if I could wave my magic wand and instantly ratify this amendment, then Clarence Thomas would get the boot on July 5, 2023.
As noted above, I’m sure I’ve missed something, and I’m sure there are ways this system would work badly, but…we’ve got to start somewhere, right? And while I yield to no one in my anger at the way Republicans have been gaming our democracy against us (and are still doing so, to what I expect may be our eternal regret, and sooner than we think), I do not want to just shift the gaming-of-the-system to the Democrats just because I’m currently on their side. If there’s one thing the post-2016 era has shown me, it’s that our Constitutional systems are nowhere near as robust as they need to be to withstand the threats confronting them now.
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A thought
It seems to me that “Cops have the right to kill you if you inconvenience them in any way” is not any kind of fundamental principle for a healthy society. It is, however, an excellent fundamental principle for an authoritarian police state. An awful lot of Americans would do well to give some thought into what kind of country they really want to be living in.
