Sunday, June 14, 2009

Constitutional Reform: Federal Judiciary

After a lengthy discussion at Unqualified Reservations (not attended by Mencius Moldbug, of course, who is in the basement of his clanky, steam-punk-looking laboratory concocting new resets and reactionary coup plots), I began thinking about how judges should be selected. The primary goal would be the defeat of such modern monstrosities as "legal realism", i.e., the arrogation of power by left-wing judicial activists in the name of equality and social engineering. A related goal would be the restoring to the states the rightful powers guaranteed to them by the framers of the Constitution.

Some suggest constitutional amendments to fulfill these goals. The obvious measure would be a measure barring the Federal government from using any power not expressly delegated to it in the body of the Constitution. A logical first move, but it was already tried in 1791. The 10th Amendment is essentially a dead letter, since it allows the Federal government very little scope to practice the social engineering demanded by the leftist establishment.

It may be more informative to look at the way judges are selected. It made sense in the 18th Century to give this power to the President, back when that office was viewed primarily as commander-in-chief with important duties in appointing and overseeing a few Federal officials, vetoing primarily those laws considered unconstitutional, etc. Those attracted to the office would primarily be elder statesmen with little interest in making their ideology prevail on controversial issues.

With the popular election of Presidential electors, that is no longer the case. The voters expect the President to fix the economy, bring social justice, expand their rights, and bring America worldwide respect while creating world peace, among other things. Someone filling this position can't be accepted to favor appointees who take a restrained toward their duties. Instead, Presidents seeks appointees whose philosophy matches their own, and that philosophy is shaped by the attitudes of a citizenry not overly concerned with policies being carried out at the proper level of government.

This is a recipe for ever-expanding Federal power, and when combined with the power of judicial review, it is downright dangerous. To deal with this, I advocate the below system for selecting the Federal judiciary.

District Judges

Lawyers having practiced law for five years, in good standing, may take the examination for the purpose of becoming a Federal judge. An individual may retake the exam a maximum of once every three years. Exams are graded anonymously by individuals chosen according to a statute. The top scorer (or scorers if there is a tie) from each of the last three years, who live in the District with the vacancy or one adjacent, are the pool from which each vacancy is filled. The new judge is selected at random from this pool.

District Judges automatically retire at age 65.

Circuit Judges

District Judges on the bench for three years, in good standing, are eligible to being elected Circuit Judge by the Federal Judicial Council. During each vacancy on a Circuit Court, every state’s FJC members can vote except those whose territory overlaps that Circuit. Secret ballots are used. To be on the ballot, each name requires one FJC member to nominate and one to second the nomination. Only Judges sitting in one of the Circuit's Districts may be nominated. An absolute majority is required for election at the first ballot; an overall majority of the votes is required for election at any subsequent ballot. No new names can be submitted after the first ballot; after any non-decisive ballot, the name with the fewest votes is eliminated from all subsequent balloting.

Circuit Judges appointed after age 60 serve for ten years. Those appointed before age 60 automatically retire at age 70.


Upon each vacancy on the Supreme Court, the Federal Judicial Council creates a binding list of three names to send to the House of Representatives. Before the voting, any sitting Circuit Judge in good standing can be put into consideration upon a nomination and a second by FJC members. Voting continues until three candidates each have the votes of 20% of the members, at which point the list is finalized to the candidates with the largest numbers of votes. If three votes are taken with the list not finalized, the candidate with the lowest number of votes at any vote is excluded from subsequent voting.

The House of Representatives elects someone from the list by secret ballot. A majority of the votes is required; if no one is elected at the first ballot the last-placed candidate is eliminated and another secret ballot held.

Justices appointed after age 65 serve for ten years. Those appointed before age 65 automatically retire at age 75. Seats can be added to the court by statute, but no more than one seat can be added every two years.

Federal Judicial Council

This Council is composed of delegates appointed by each state’s executive. Each member serves a 6-year term, and they are staggered so that one-sixth of the membership retires annually; they are permanently ineligible for re-appointment. Each state has a number of members equal to the square root of its US House delegation, dropping fractions (i.e. if it has between nine and fifteen US Representatives it gets three judicial delegates. Given the 2000 Congressional apportionment, this system would produce 113 Council members if only states were included.)

The Council:

  • Appoints and oversees the individuals who create the District Judge exam (who may or may not be Council members)
  • Has final say to approve or disapprove the District Judge exam
  • Elects Circuit Judges from among sitting District Judges
  • Recommends a list of candidates from among sitting Circuit Judges to the US House of Representatives preceding election to the Supreme Court


The FJC, with its hand in judge selection at every level, should strongly influence the ideological character of the Federal judiciary. The FJC's ideology will of course be a reflection of that of the state governors, who are likely to zealously guard state power. Other than that, FJC members from one state will have little in common with those of another state, creating a broad tapestry with the most radical ideologies canceling each other out.

Furthermore, the FJC is only the decisive force at one level (the Circuit courts). The decisive force at the District level will be the graders, and it is up to Congress to create the method whereby they are picked. A possible system would be: have each paper made anonymous and scored by three separate graders, one faculty member from an ABA-approved law school in the District (the law schools represented on a rotating basis), one randomly-selected Federal judge (serving or retired) from the Circuit, and an individual appointed by the US Attorney General; each exam's final score would be the median of the three grades it received. (The decisive force for Supreme Court appointments is the US House of Representatives, which I discuss in another post.)

Of course, were this plan to gain any real support, resistance would likely coalesce around all the most sensible provisions, namely, the elements of randomness and the use of square roots. Also, the FJC would be anathema to some as "the creation of a new Federal bureaucracy" (though in terms of employees the FJC is very small compared to the rest of the judicial branch). Still, I think there is no way to solve the problem of judicial activism in the Federal court system without recourse to some sort of standardized test and some random selection.

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