Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Now that the election is over, we can stop worrying about those daily surveys of likely voters and get on with more important things, such as giving the president helpful advice on whom to appoint to the U.S. Supreme Court. It’s not that he doesn’t have plenty of good advice on this. He has advisers, consultants, pundits and pollsters all of whom give him mountains of good advice. I can see it now: “In a survey of likely litigants expressing a preference, it was too close to call between Sandra Day O’Connor and. …” Yes, it will be just another silly season, a 1,400-inning Red Sox-Yankees play-off game, only without “Senor October” to provide the necessary closure. So herewith some free advice from a guy with intimate knowledge of the Supreme Court — I’ve taken the tour twice and even own a genuine red plastic, gold-embossed Supreme Court of the United States key fob — on how to short circuit the upcoming nomination gridlock before it even starts. When I first decided to take on the task of ending America’s Judge Wars, I took the time to read the U.S. Constitution and I discovered that nothing in the Constitution says that anyone has to be alive to be a justice of the Supreme Court. There are amendments about what happens when the president dies, but they’re mostly to keep the vice president placated and coming to work each day. Not so for the justices of the Supreme Court. And therein lies not one but two magic solutions for our little problem. Option One: “Don’t ask, don’t tell.” To make this work all nine of the justices, or at least any of them who can’t get affordable life insurance, need to stop asking questions at oral argument. Justice Clarence Thomas apparently does this already, so there is ample precedent for the practice. Anyway, if the justices just stop asking questions, who will really know what they are thinking or even if they are alive to think? I know this is going to be tough on Justice Antonin Scalia, but if he’ll just stay on task, we won’t even need a confirmation fight because we won’t need to replace anyone. Option Two: “Call for Justice Minton!” I know, I know. “Don’t ask, don’t tell” is only a short-term option. About the time of Justice John Paul Stevens’ 131st birthday party, some wise guy investigative reporter would figure out that none of the justices had much in the way of a pulse and that would blow the whole plan. True enough, but if it is true that you don’t have to be alive to sit on the Supreme Court, you don’t have to be alive to be an appointee. Here we take a nod from those colorless and largely forgotten associate justices who, like snow in the Valley, melted away as fast as they arrived. These guys were so bland they might as well have been dead. And that’s the plan. Dig up some of these proven non-entities, re-nominate them and let the Senate try to have its way with them. Comments such as, “He’s not dead . . . just vapid,” should still any concerns and ensure bipartisan support and quick confirmation. PASS THE SALT Option Three: “Closed for repairs.” When I was at the Supreme Court building in August, tours were not allowed to go into the courtroom because it was undergoing its annual cleaning. So let’s just say somebody happened to spill a Venti white chocolate Frappuccino all over the dark carpet in there. I’ll bet — nod, nod, wink, wink — it would take months to clean up, and of course there just couldn’t be any oral arguments or that stain would get ground in and never come out. You’d have to vary the disaster to keep up appearances — an occasional burst pipe or moth hole in the red drapes would be good as variations — but there isn’t any reason why with a little creativity the courtroom couldn’t be kept closed for oral arguments for years. And without argument, who’d know where those justices were anyway? Option Four: “No cert for you.” In a bow to the Soup Nazi on “Seinfeld,” just stop granting petitions for certiorari at all. Then there won’t have to be oral argument or opinions or any of those other pesky details that we need the justices for. A couple of guys in the clerk’s office to handle the paperwork and keep up the docket sheets on the Web site, and a few people to trudge meaningfully in and out of the justices’ chambers with stacks of papers and briefs, would be all that we need to make this work. Option Five: “The last best hope.” OK, I admit it. No cert petitions probably isn’t the way out either. I almost hate to admit this now, because I was saving his name for 2008, but there is one person who can unite our Supreme Court in a way it never has been before. Yes, that’s right. I’m talking about the Honorable Parrothead hisself, Jimmy Buffet. Writer, social scholar, connoisseur of agave-centric beverages. Who better to bring our judicial system back to nonreality than the man who released an album called “A White Sport Coat and a Pink Crustacean?” So I ask you, what’s it to be — partisanship or margaritas? I thought so. Just don’t forget to take some salt when you go for argument. Tom Alleman, a shareholder in the environmental and insurance practice groups at Winstead Sechrest & Minick in Dallas, has never once had a petition for certiorari granted, and if this column isn’t the judicial equivalent of the “curse of the Bambino,” it’s hard to figure what else could be worse. Is it any wonder that his opinions aren’t necessarily those of the firm, its clients or professor Laurence Tribe?

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.