A New Precedent: Supreme Court Nomination Process is Broken
On last night’s Rachel Maddow show, she opened with the rather grim analysis of the situation:
“The precedent is now established that hence forth, in our country , no president will get to nominate Supreme Court justices anymore, unless his or her party also controls the United States Senate. That is the new standard for our country..”
— Rachel Maddow, Monday April 10th, 2017
How would that have affected us if that had been true in the recent past? In the last 50 years, since Nixon, slightly more than 50% of the time the president has been in the opposite party of the Senate (25.5 years opposite party vs. 24.5 years same party, according to this wikipedia article.)
Rachel did not have the time to point out that this new precedent for our nomination and confirmation process ensures that future presidents will no longer have any incentive to find centrist nominees. And I think that’s an even bigger problem in the long term for the health of the Supreme Court.
The current problems with the Supreme Court appointment process include:
- Justices overstay their “lifetime appointments”, hanging on for a opportune time to get a like-minded replacement
- Some presidents may get several appointments, while others get none
- “Lifetime” appointment encourage getting the youngest, least experienced candidate that will get through the process, in order to get the longest span of ideological influence
- The outrageous “Garland Theft” scenario is likely to happen again and again, in fact, historically, it would have been 50% of the time
- The new “Gorsuch standard” ensures an increasingly partisan court
What’s the Fix?
Here’s the simple plan that seems to address many of these issues:
- Supreme court judges serve a fixed term of 18 years
- Every 2 years, the president gets to select a justice, as the most senior justice “terms out”.
- A requirement that the Senate take up the vote up or down on of the president’s nominee within 60 days (no more Garland Theft.) It might be wise to make it a 60 vote requirement to affirm or deny the appointment — to force more centrist nominees.
- In the event of a premature vacancy (death, sickness, scandal, retirement, etc.), the president could nominate an appointment to server out the remainder of the term for that seat.
Doesn’t this require a constitutional amendment?
That’s certainly the most obvious way to go. But perhaps not required. There’s an promising workaround is to provide every supreme court justice a “lifetime appointment” as a justice, but they only serve as a member of the supreme court for 18 years. Here’s a good description of the idea from a 2002 article in the Washington Post:
Although the federal Constitution itself vests justices with life tenure, there are a variety of measures, short of amending the Constitution, by which Congress and the president could move future justices toward a tradition of fixed terms -- say, 18 years. For example, some commentators have proposed a clever statutory solution under which judges would technically sit on the Supreme Court "by designation" for a fixed number of years after which they would have the option to serve the remainder of their life tenure on some lower federal court.
A Simple Fix, but Not An Easy One
While the idea is pretty simple, and direct, and it really does seem to improve an increasingly broken system, making this happen is really a challenge. It would require our legislators to work together in a bi-partisan way to flesh out an approach that would work for everyone. There does not seem to be any specific strategic advantage that this fix provides to either party. Of course, some games might be played in the implementation details, like how it might get phased in, etc.
How could we push this idea and move the ball forward? Is this an issue that Bernie or Elizabeth could get behind? Would that kind of support poison the issue for a Susan Collins or John McCain?
What do you think?
So what do you think? Is this the kind of approach to fixing government that both Republicans and Democrats would like? It seems to me that this is the kind of long-term solution-oriented approach that seems to be missing in today’s national politics. Seems like the kind of thing both John McCain and Elizabeth Warren could get behind.
More reading and sources:
More reading on the subject (look at the dates, this things been kicking around for years!):
“Term Limits for the High Court”, Washington Post, Aug 2002
“Perry’s Good Idea”, New Yorker, Jan 2012
“Should 18 Years be the limit for Supreme Court Justices?”, Chicago Tribune, March 2017
Thursday, Apr 13, 2017 · 5:37:21 AM +00:00
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Rational Exuberance
The Federalist Society and conservatives on the Court
After I wrote the original story here, and addressed some of the comments with my own, I pointed out that the founder of the Federalist society was one of the proponents of setting term limits for the court. This recent New Yorker article: “The Conservative Pipeline to the Supreme Court” by Jeffrey Toobin that a guy named Leonard Leo, an executive vp of the Federalist Society has been influenced the selection of 3 conservative Justices. A short well written article, worth a read.
Jeffrey was interviewed about his article on Fresh Air, “How One Man Brought Justices Roberts, Alito And Gorsuch To The Supreme Court”, also short and worth your time.
Why Do Conservatives Love this Idea?
The term limits idea seems like a good one to me, I wonder why it’s so strongly supported by such a conservative group that has successfully enabled pushing SCOTUS pretty far right.
Along the lines of “the enemy of my enemy is my friend” (often not true..btw), I can’t help but think, would term limits help keep or push the court right? Looking at the dates that the pro-term limits stuff has been written, I think at those times, it looked like Dems were going to have a lot of nominations in the next few years. Then Trump Happened. Maybe conservative enthusiasm for this has waned? (Like the cynical partisan Republican flip flop on Syria NYFM summarized.)