Reading the reaction to Pete Buttigieg’s supposed praise for Justice Kennedy’s independence, I find myself despairing of the possibility of contextualizing anything. 1/
Buttigieg did not say -- as most of the resulting criticism appears to assume -- that he would appoint justices like Kennedy. What he said was that he's interested in exploring various alternative appointment schemes. 2/
In the Cosmo interview in which he mentioned Kennedy, Buttigieg touted one such scheme proposed by Dan Epps & Ganesh Sitaraman in a forthcoming Yale LJ article. Here's the Cosmo article: cosmopolitan.com/politics/a2956… 3/
Here's a link to the Epps/Sitaraman article: dx.doi.org/10.2139/ssrn.3… And here's a link to an article from months ago in which Buttigieg touted his support for the proposal: nbcnews.com/politics/2020-… 4/
The Epps/Sitaraman proposal would increase the size of the SCOTUS to 15 justices, 5 chosen by Dems, 5 by Repubs, and the other 5 “neutrals” chosen unanimously by the 10 “partisan” appointees. They model the approach on commercial arbitration. 5/
The Epps/Sitaraman proposal may violate the Appts Clause. They say it doesn’t, so long as the 5 neutrals are drawn from previously Senate-confirmed Art III judges. They analogize to sitting by designation. 6/
Maybe they’re right about constitutionality; maybe they’re wrong; that’s not my interest right now. Buttigieg himself said in the Cosmo interview only that many scholars think the proposal is constitutional. We know at least 2 do: Epps & Sitaraman. 7/
Anyway, Buttigieg DID NOT SAY HE WOULD APPOINT KENNEDY-LIKE JUSTICES TO A VACANCY ON THE SCOTUS as currently configured. He said that under the Epps/Sitaraman approach, neutrals would be like Kennedy and Souter, which would depoliticize the Court. 8/
I think the whole proposal is naive in its suggestion that the SCOTUS can be depoliticized. I’m not even sure that Epps or Sitaraman, much less Buttigieg, whose fine education did not include law school, has a clear conception of what apolitical judging would be. 9/
I don’t like the Epps/Sitaraman/Buttigieg proposal. I am not supporting Buttigieg for the Democratic nomination. But condemning him for selling out based on the false premise that he endorsed Kennedy-like justices is either dishonest or the result of extreme laziness. 10/
It took me all of 30 seconds of Googling to learn that Buttigieg has been promoting the Epps/Sitaraman proposal for months and that he did not endorse Kennedy-like justices. END OF THREAD/
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