My new pet idea for improving the Supreme Court confirmation process emerged from a lunchtime conversation with Dara Lind: Why not use a lottery? The details could be quibbled over, but my idea would be that every year on January 1 there’d be a Supreme Court Lottery among all the active Appeals Court judges with at least five years of service. One judge would be selected, and he or she would serve a nine-year term on the Supreme Court. Whichever justice was currently on Year Nine would act as Chief Justice, and at the end of Year Nine he or she would be busted back down to the Court of Appeals.
The main problem with choosing public officials by lottery is that you need to worry about outliers, but since the Supreme Court operates as a nine-vote collective outliers don’t really matter that much. Having a fluid up-and-down path between the Supreme Court and the circuits would also drive home the fact that the justices have a responsibility is to create a workable legal system and not just toy with the law. And making the exact composition of the court semi-random would do a good job of honestly capturing the fact that there’s a level of indeterminacy surrounding legal questions.
Of course to make this work well you’d want to have some kind of system to avoid the current situation of mass vacancies on the lower courts, but that would be advisable on its own terms.