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> Almost all SCOTUS clerks come from two law schools, and work for judges that went to their law schools. It is rare for a judge to select a clerk that didn't g

> Almost all SCOTUS clerks come from two law schools, and work for judges that went to their law schools. It is rare for a judge to select a clerk that didn't go to their own law school. Unfortunately it creates a self-perpetuating situation. The rationale is understandable. People always prefer the familiar to the unfamiliar. But it leads to these situations. One possible fix would be for Congress to remove the justices' right to select their own clerks, and for that selection to be moved to a third-party, like the Senate Judiciary Committee or the Justice Department.

torstenvl 6y ago
Congress has no such power.
- HenryKissinger 6y ago
  https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1789 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1789 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869 Congress has already established the composition and the procedures of the court. Of course it has that power.
  - deleted 6y ago
    [deleted]
  - torstenvl 6y ago
    No. It does not. The separation of powers would make such a law unconstitutional. The judiciary would never abide by it. And good luck to Congress trying to enforce it. Never in the history of the republic has one branch of government been able to dictate in such granularity who may be hired by another branch.
    - deleted 6y ago
      [deleted]
    - dmckeon 6y ago
      A claim with well over 1000 exceptions: https://en.wikipedia.org/wiki/List_of_positions_filled_by_presidential_appointment_with_Senate_confirmation https://en.wikipedia.org/wiki/List_of_positions_filled_by_pr...
      - torstenvl 6y ago
        Apples and oranges. Senate confirmation is not the same thing as a law prohibiting the hiring of people with certain experience. And it is certainly not the same as usurping the hiring decision entirely.
    - jkaplowitz 6y ago
      You're underestimating how much power Congress legitimately has over the rest of the government, when they choose to exercise it. All money spent by the federal government in all three branches, including on judicial clerk compensation salaries, is determined by Congressional authorization and congressional statutes regarding employment and compensation. Congressional statute law heavily regulates hiring throughout the executive branch, despite that being a separate branch of government from Congress. There's no reason the judiciary is any different. What's more, while the procedural rules of the federal courts are mostly set by the federal courts themselves, this is done under the authority of an act of Congress, which has been amended several times both to increase and reduce the courts' self-regulatory authority. As for the Federal Rules of Evidence, Congress refused to allow the version of those which the Supreme Court originally approved to go into affect, and then they later passed a substantially altered version as an Act of Congress. The Constitution itself makes explicit Congress's ability to regulate the Supreme Court's appellate jurisdiction (which applies to almost all of its docket) and even to reduce the scope of that jurisdiction. And it has pretty plenary power to add, remove, and restructure the inferior federal courts, aside from whatever tenure protections apply to individual judges who have not been impeached by the House and removed from office by the Senate. And, as others have said, the Senate even individually approves federal judges as per its constitutional mandate under the appointments clause. This is certainly not a separation of powers violation.
      - torstenvl 6y ago
        I'm not underestimating anything. You're outside your depth here. Congress can ordain and establish inferior courts, and can regulate the appellate jurisdiction of the Supreme Court. However, it cannot regulate much of the judiciary outside that. For one, it cannot expand the Supreme Court's original jurisdiction. Marbury. Nor can it dictate how the court applies the law. Klein. Congress's power over the federal judiciary is constrained and there is no basis in the text of the Constitution or in any case law to support your position.
        evgen 6y ago
        Marbury is nothing more than a power-grab by the judiciary that we have all decided to abide by, for the moment. The judiciary has no power whatsoever other than that which comes from its perceived legitimacy; legitimacy which has been heavily damaged over the past 20 years and which is dangling by a thread at the moment. There is really nothing stopping Congress from slapping back the Supremes other than convention, and I suspect that this is going to be ending soon -- Congress can cut the Supreme Court back to nothing but original jurisdiction and then create a new court for constitutional appeals to bypass them completely. Quoting case law won't help them and no matter what they may claim there is nothing nine politicians in black robes can do about it if the other two branches decide that this is how things are going to work going forward.
    - Spooky23 6y ago
      Judges would be pretty outraged over meddling with their personal fiefdoms, no doubt. And modern congress is pretty spineless in general. But the power and precedent exists — see the Pendleton Civil Service Act. Even in these times, the federal bureaucracy is a significant barrier to systematic corruption and patronage.
    - 6nf 6y ago
      A careful reading of the Constitution will reveal that Congress is more powerful than the other two branches — and rightfully so. Only Congress can make laws, and can do so with or without the president's consent. Congress can remove a president or a Supreme Court justice, but only Congress can expel a member.
ponker 6y ago
The Supreme Court is the only branch of government that still has legitimacy — bringing it to the Senate will make it just another political football.
- MiroF 6y ago
  > the only branch of government that still has legitimacy Legitimacy w.r.t. what? What is it that the Supreme Court has that congress is lacking?
  - crocodiletears 6y ago
    Respect? A basic perception of goodwill and competence? The Supreme Court has a very narrow mission statement, and it generally executes on it well. Congresspeople sabre rattle on TV, submit symbolic legislation with poison pills and take turns abstaining on legislation they don't want passed but their constituents do, and hide whatever they want to pass in unrelated legislation (budgets, usually). They eagerly devolve every responsibility they can to the executive branch, and seem incapable of voting against their own or the intelligence community's interests. The only principled one seem to be single-issue legislators who couldn't tell the ass-end of a horse from its head if it was unrelated to their obsession. During depositions they spend more time chasing soundbites and executing partisan jabs than trying to extract any information in the public interest. Many of them seem to care more about the rest of the country than they ever could about their district or their states. Edit: As a punctuation, here's the late John McCain's wife saying 'we all knew', wrt Eptsein https://www.youtube.com/watch?v=7QENiaUaoJo https://www.youtube.com/watch?v=7QENiaUaoJo
    - Nimitz14 6y ago
      > This latest development should certainly call into question the haphazard rules and procedural tricks that allot Trump the power to decisively tip the scales of justice in his favor. Pressed further, one might also ask: Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people I think the arguments (that go against yours) in this article are relevant: https://www.newyorker.com/news/our-columnists/the-case-for-ending-the-supreme-court-as-we-know-it https://www.newyorker.com/news/our-columnists/the-case-for-e...
content_sesh 6y ago
"In a 9-0 decision, SCOTUS has struck down as unconstitutional the law giving Senate Judiciary power over hiring clerks." More seriously, I'm not convinced moving this to a Senate subcommittee would lend any more legitimacy to the system. As evidence I present what Senate Republicans did to stonewall Obama appointees at the end of his last term so that McConnell et all could push through dozens of 30 year old reactionary freaks to lifetime appointments.
- war1025 6y ago
  > what Senate Republicans did Party politics has become an increasingly tit for tat series of one side violating a norm, followed by the other side one-upping them. It's basically a war of attrition at this point. Republicans are going to push through a new court appointee, largely "because fuck you, that's why." If Democrats win control of either the Presidency or the Senate, expect them to do something similar. Also simply "because fuck you." At some point it's going to all boil over, and who knows where that will end up.
  - coredog64 6y ago
    This is literally the definition of iterated prisoner’s dilemma. The way to break the cycle and see more cooperation is to keep 1 round of memory. Put another way, acknowledge that norm breaking (defection) on round X was caused by norm breaking on round X-1 and allow it (or try to scale it back to an equivalent exception). What doesn’t work is ignoring all the times you defected and then trying to get in one last escalated defection because “fuck you, that’s why” Unfortunately, that requires adults who can work together and a public that can deal with nuance.
    - gpm 6y ago
      > The way to break the cycle and see more cooperation is to keep 1 round of memory. And betray on the last round, because that can only help you. But since that means everyone should betray on the last round, everyone should also betray on the second last round since that won't effect your opponents behavior next round anyways (they're already going to betray). And the third from last round. And fourth... And... actually just always betray. Simple computer algorithms do not fully capture the real world. And the simple algorithm that happens to have won a single tournament in which players could not see what other players were doing and adjust their strategy is not going to translate well to the real world.
Spooky23 6y ago
Another, less political methodology would be to implement a merit based civil service appointment system for candidate selection.

torstenvl 6y ago

Congress has no such power.

HenryKissinger 6y ago
https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1789 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1789 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869 https://en.m.wikipedia.org/wiki/Judiciary_Act_of_1869 Congress has already established the composition and the procedures of the court. Of course it has that power.
- deleted 6y ago
  [deleted]
- torstenvl 6y ago
  No. It does not. The separation of powers would make such a law unconstitutional. The judiciary would never abide by it. And good luck to Congress trying to enforce it. Never in the history of the republic has one branch of government been able to dictate in such granularity who may be hired by another branch.
  - deleted 6y ago
    [deleted]
  - dmckeon 6y ago
    A claim with well over 1000 exceptions: https://en.wikipedia.org/wiki/List_of_positions_filled_by_presidential_appointment_with_Senate_confirmation https://en.wikipedia.org/wiki/List_of_positions_filled_by_pr...
    - torstenvl 6y ago
      Apples and oranges. Senate confirmation is not the same thing as a law prohibiting the hiring of people with certain experience. And it is certainly not the same as usurping the hiring decision entirely.
  - jkaplowitz 6y ago
    You're underestimating how much power Congress legitimately has over the rest of the government, when they choose to exercise it. All money spent by the federal government in all three branches, including on judicial clerk compensation salaries, is determined by Congressional authorization and congressional statutes regarding employment and compensation. Congressional statute law heavily regulates hiring throughout the executive branch, despite that being a separate branch of government from Congress. There's no reason the judiciary is any different. What's more, while the procedural rules of the federal courts are mostly set by the federal courts themselves, this is done under the authority of an act of Congress, which has been amended several times both to increase and reduce the courts' self-regulatory authority. As for the Federal Rules of Evidence, Congress refused to allow the version of those which the Supreme Court originally approved to go into affect, and then they later passed a substantially altered version as an Act of Congress. The Constitution itself makes explicit Congress's ability to regulate the Supreme Court's appellate jurisdiction (which applies to almost all of its docket) and even to reduce the scope of that jurisdiction. And it has pretty plenary power to add, remove, and restructure the inferior federal courts, aside from whatever tenure protections apply to individual judges who have not been impeached by the House and removed from office by the Senate. And, as others have said, the Senate even individually approves federal judges as per its constitutional mandate under the appointments clause. This is certainly not a separation of powers violation.
    - torstenvl 6y ago
      I'm not underestimating anything. You're outside your depth here. Congress can ordain and establish inferior courts, and can regulate the appellate jurisdiction of the Supreme Court. However, it cannot regulate much of the judiciary outside that. For one, it cannot expand the Supreme Court's original jurisdiction. Marbury. Nor can it dictate how the court applies the law. Klein. Congress's power over the federal judiciary is constrained and there is no basis in the text of the Constitution or in any case law to support your position.
      - evgen 6y ago
        Marbury is nothing more than a power-grab by the judiciary that we have all decided to abide by, for the moment. The judiciary has no power whatsoever other than that which comes from its perceived legitimacy; legitimacy which has been heavily damaged over the past 20 years and which is dangling by a thread at the moment. There is really nothing stopping Congress from slapping back the Supremes other than convention, and I suspect that this is going to be ending soon -- Congress can cut the Supreme Court back to nothing but original jurisdiction and then create a new court for constitutional appeals to bypass them completely. Quoting case law won't help them and no matter what they may claim there is nothing nine politicians in black robes can do about it if the other two branches decide that this is how things are going to work going forward.
  - Spooky23 6y ago
    Judges would be pretty outraged over meddling with their personal fiefdoms, no doubt. And modern congress is pretty spineless in general. But the power and precedent exists — see the Pendleton Civil Service Act. Even in these times, the federal bureaucracy is a significant barrier to systematic corruption and patronage.
  - 6nf 6y ago
    A careful reading of the Constitution will reveal that Congress is more powerful than the other two branches — and rightfully so. Only Congress can make laws, and can do so with or without the president's consent. Congress can remove a president or a Supreme Court justice, but only Congress can expel a member.

ponker 6y ago

The Supreme Court is the only branch of government that still has legitimacy — bringing it to the Senate will make it just another political football.

MiroF 6y ago
> the only branch of government that still has legitimacy Legitimacy w.r.t. what? What is it that the Supreme Court has that congress is lacking?
- crocodiletears 6y ago
  Respect? A basic perception of goodwill and competence? The Supreme Court has a very narrow mission statement, and it generally executes on it well. Congresspeople sabre rattle on TV, submit symbolic legislation with poison pills and take turns abstaining on legislation they don't want passed but their constituents do, and hide whatever they want to pass in unrelated legislation (budgets, usually). They eagerly devolve every responsibility they can to the executive branch, and seem incapable of voting against their own or the intelligence community's interests. The only principled one seem to be single-issue legislators who couldn't tell the ass-end of a horse from its head if it was unrelated to their obsession. During depositions they spend more time chasing soundbites and executing partisan jabs than trying to extract any information in the public interest. Many of them seem to care more about the rest of the country than they ever could about their district or their states. Edit: As a punctuation, here's the late John McCain's wife saying 'we all knew', wrt Eptsein https://www.youtube.com/watch?v=7QENiaUaoJo https://www.youtube.com/watch?v=7QENiaUaoJo
  - Nimitz14 6y ago
    > This latest development should certainly call into question the haphazard rules and procedural tricks that allot Trump the power to decisively tip the scales of justice in his favor. Pressed further, one might also ask: Why should the Supreme Court, an unelected body that is richer, whiter, and more male than the United States is, continue to have such outsized power in the lives of ordinary people I think the arguments (that go against yours) in this article are relevant: https://www.newyorker.com/news/our-columnists/the-case-for-ending-the-supreme-court-as-we-know-it https://www.newyorker.com/news/our-columnists/the-case-for-e...

content_sesh 6y ago

"In a 9-0 decision, SCOTUS has struck down as unconstitutional the law giving Senate Judiciary power over hiring clerks." More seriously, I'm not convinced moving this to a Senate subcommittee would lend any more legitimacy to the system. As evidence I present what Senate Republicans did to stonewall Obama appointees at the end of his last term so that McConnell et all could push through dozens of 30 year old reactionary freaks to lifetime appointments.

war1025 6y ago
> what Senate Republicans did Party politics has become an increasingly tit for tat series of one side violating a norm, followed by the other side one-upping them. It's basically a war of attrition at this point. Republicans are going to push through a new court appointee, largely "because fuck you, that's why." If Democrats win control of either the Presidency or the Senate, expect them to do something similar. Also simply "because fuck you." At some point it's going to all boil over, and who knows where that will end up.
- coredog64 6y ago
  This is literally the definition of iterated prisoner’s dilemma. The way to break the cycle and see more cooperation is to keep 1 round of memory. Put another way, acknowledge that norm breaking (defection) on round X was caused by norm breaking on round X-1 and allow it (or try to scale it back to an equivalent exception). What doesn’t work is ignoring all the times you defected and then trying to get in one last escalated defection because “fuck you, that’s why” Unfortunately, that requires adults who can work together and a public that can deal with nuance.
  - gpm 6y ago
    > The way to break the cycle and see more cooperation is to keep 1 round of memory. And betray on the last round, because that can only help you. But since that means everyone should betray on the last round, everyone should also betray on the second last round since that won't effect your opponents behavior next round anyways (they're already going to betray). And the third from last round. And fourth... And... actually just always betray. Simple computer algorithms do not fully capture the real world. And the simple algorithm that happens to have won a single tournament in which players could not see what other players were doing and adjust their strategy is not going to translate well to the real world.

Spooky23 6y ago

Another, less political methodology would be to implement a merit based civil service appointment system for candidate selection.