America Needs "Vice Justices"
A proposal for making American Democracy more robust
Problem: Radicals have dangerous incentives when it comes to Supreme Court justices
The nearly-attempted assassination of Supreme Court Justice Kavanaugh this spring was under-reported. In case you missed it: a man was arrested outside of Kavanaugh’s home after 1am with a gun, tactical gear, and intent to kill Kavanaugh.
An even more under-covered story is that the would-be killer’s motives were alarmingly coherent.
The AP describes his motivations, based on court filings:
Killing one jurist could change the decisions of the court “for decades to come” … Roske [the would-be assassin] wrote, adding, “I am shooting for three [justices].”
Roske explained that “all of the major decisions for the past 10 years have been along party lines so if there are more liberal than conservative judges, they will have the power.”
So, the would-be killer was motivated not purely by rage, but also by a calculated sense that, in his warped mind, he would be doing good for society in an “ends justify the means” sense.
An assassination would unfortunately change the balance of the court for decades
If the assassin had killed his target, he probably would have gotten his wish.
Biden might not pick a firebrand leftist as a replacement, due to public sentiment. Even if such a judge were nominated, senators like Manchin or Sinema would likely veto it in the atmosphere following an assassination.
But it’s also hard to imagine President Biden and a Democrat-controlled Senate selecting a replacement with the same originalist views of the Constitution that Kavanaugh has (to say nothing of, say, Justice Thomas.)
I would bet that a replacement pick would be a quasi-moderate who’d rule far to the “left” of how Kavanaugh rules. Perhaps someone like Merrick Garland, who was billed in the Obama years as a compromise pick who deserved Republican support in the Senate.
Republicans in power would likely act no differently, if the shoes were reversed.
But at the same time, both Republicans and Democrats should be able to agree that letting assassins “win” would be bad, and that the Constitution’s interpretation should not come down to whichever side has the most psychopathic fanatics.
There should be some way for the two parties to coordinate, to avoid the above nightmare scenario in advance.
Making the stakes still higher, if an assassination ever does occur, it could easily lead to a vicious “tit for tat” cycle, where crazies on both sides feel morally justified in “taking back” a seat — especially in an era where the policy stakes are so high, from abortion, to speech, to guns, to election processes.
Unsurprisingly, America’s leaders have not taken the above dangers seriously.
While urging protestors to stay “peaceful”, President Biden and his spokeswoman repeatedly refused to condemn protests outside the justices’ private homes, declining to do so both before and after the would-be assassin showed up at Kavanaugh’s house.
After the incident, Biden’s spokeswoman further declined to condemn protestors who had tracked Kavanaugh down at a restaurant and protested outside it while he was there, forcing him to leave early due to security concerns:
That attitude was matched with a similar tone in many major media outlets. The New York Times kept the assassin story off their front page, as Bill Maher noted:
I bring this up not to slam media and policymakers, but because it’s relevant in gauging the hyper-partisanship in the US today. All the above suggest that it’s unlikely that President Biden would pick a strict originalist replacement out of a desire to preserve civility, unity, or good incentives. The same is true about Trump, going in the other direction, of course.
Solution: Vice Justices
A vice president serves an important role, not merely as a ready replacement for the President, but also by preventing the existence of a political incentive for assassination to begin with.
If you ever spend time in the comments of far-right news sites, or on far-left Twitter (I do this sometimes as a sociological learning exercise) you can find plenty of commenters starting to wish ill upon the incumbent president of the other party, but then bemoaning that — dammit, if he dies, he’ll just be replaced by Pence/Harris. (Which may be even worse, say the commenters!)
So, I think even the crazies pay attention to the reality of succession.
I propose that the current system be tweaked, to create Supreme Court “vice justices,” to re-align incentives.
Specifically: just like the president does, every justice should select his or her own “vice justice,” who, just like vice presidents, will do absolutely nothing, unless a justice is murdered, in which case the vice justice will immediately take the bench and appoint his or her own vice justice.
An important side-point: if a justice resigns, or dies of natural causes, the vice justice would not be called up. Otherwise, that would create a permanent hereditary seat.
The goal is merely to prevent zealots from having an incentive to murder justices.
Implementation: Constitutional Amendment not needed
The clearest way of implementing the above proposal is by passing a Constitutional Amendment. That would be great.
But it isn’t strictly necessary to have such a major overhaul.
Perhaps Congress could simply pass a law stating that, in the case of an assassination, the Senate pre-commits to only giving its Constitutional consent to a Presidential Supreme Court nominee when the pick is the vice justice.
That may not be legally binding, and in any case could be undone by another law. But I think realistically, no Senate would dare pass a law specifically to undo that — to reject a justice’s chosen vice justice, right after a murder. That would seem just too callous.
In fact, it doesn’t even need be a law. It could be a pact between the two major parties.
In a more sane society than we have today, in the wake of the assassin showing up at Kavanaugh’s house, Biden, Schumer, and McConnell could have held a joint press conference about “the need to preserve democracy and the Constitutional process, even when we disagree with its outcome” — and agreed to create a written pact between the two parties, outlining the above.
Again, it wouldn’t even need to be legally enforceable. It’d still be unlikely to be broken, given how public sentiment would be if a justice had just been murdered.
I think the “default” is particularly important in such a case. Right now, it’s “just how the system works” that a murdered judge would get replaced by one with a quite different Constitutional philosophy. We should change that norm, so that picking the judge’s own vice justice becomes “just how the system works.”
As an aside, I think it’s hard to overstate how much something like the above gesture would have helped unite the country and make all Americans, including the tens of millions of “MAGA” Americans, feel reassured that Biden was committed to protecting their rights and their place in the democratic/Constitutional process, even when he disagreed with them on policy.
The Democratic base might have been annoyed, in the context of Kavanaugh’s recent ruling, but how much could they really complain about a plan to prevent assassinations?
Anyway, we don’t live in that sane society.
The above idea isn’t going to happen any time soon.
Instead, the United States will muddle through the next couple of decades with, each year, say a 2% chance of a major Constitutional crisis caused by the assassination of one or more justices. Maybe, if that happens, then people will start thinking about the issue.
Let’s hope it’s never needed.
Currently, the only way of keeping incentives in balance is to ensure that the Senate is always controlled by a different party than the President.
Anyway, despite the above reality, we can still envision how things could be better, and more robust, and talk about it!
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An interesting article, but I think to make the idea enforceable a constitutional amendment would be required, as the appointment power is vested in the President by the Constitution. No congressional statute or pact could deprive the president of that constitutional power.
A vice-justice system would address another potential problem with the Supreme Court, by making it easier for Justices to recuse themselves when there's the possibility of a conflict of interest.
Under the present system, a recusal can shift the balance of the Court in a direction with which the recusing Justice disagrees. I'd be much more willing to recuse myself if I knew I'd be replaced by someone with a similar judicial philosophy.