Supreme Solutions: Saturday Political Soap Box 188

Oops!  Sorry - wrong Supremes!  Anyways, now that I've got your attention, maybe you can look at the rest of the blog.  - , Your friend, Misleading T. M.

The norms are not the same.

For better or worse, how we select, nominate and confirm Supreme Court Justices has changed.  The selection criteria have narrowed and become more partisan. 

For selecting a nominee, jurisprudence and experience are no longer factors. Demonstrated fealty to a political agenda and age has become more critical.  President Trump is working from a list that has been preselected by a conservative organization that has been pre-vetted for their loyalty to a specific agenda.  They are also looking at young nominees, in their thirties and forties, to take advantage of the fact that the Supreme Court is a lifetime appointment, and ensure the dominance of the current political dogma for as long as possible.

Once nominated, the Congress makes no pretense about looking at general qualifications or giving any weight to the President's preferences.  There is no longer a sixty vote threshold to avoid a filibuster, so if the President's party controls the Senate, they will vote in the nominee regardless of qualifications or extremism.  If the President's party does not control the Senate, then the nominee may not even get a hearing, as was done to President Obama's nomination of Merrick Garland.  This is not a rare exception.  This is the new norm.

Without having to win votes from the other political party, nominees will become more extreme and hyper-partisan.  The Supreme Court will become less dependent, judicious, and impartial.  Instead of being an independent and co-equal branch, they will become more beholden to the President and Congress, and whatever special interests dominated at the time they were selected to serve.

If you are in alignment with Trump's agenda, you may think this is a wonderful thing.  But politics are not a constant.  The worm turns, alliances shift, partisan control varies.  And with lifetime appointments, how often a President gets to appoint nominees may differ.  You never know.  A future President Bernie Sanders, or someone very much like him, may be able, through chance and circumstance, to appoint five or six judges

I don't know if we can ever go back to the more polite, congenial way we nominated and confirmed Supreme Court justices.  The acceleration of our divided partisanship shows no sign of abating.

But there are some simple reforms that we can enact that may help, in at least some small way, to balance things out.  And I don't believe they require a new constitutional amendment. However, if they do, they do, and we should make the effort to change the constitution.

First, we should have term limits.  Those limits should be generous, say twenty to twenty-five years, but they should be limited nonetheless.  This means that replacements can be made at predictable times.  Yes, being mortal, there would be other replacements that come up, but overall, the system would be less partisan.

Although it is true that the Supreme Court justices serve lifetime appointments to make them "above" political pressures, that is clearly not what's happening.  Their biases just become fixed in eras where they are less and less relevant.  Some judges hang on too long, even after their physical and mental capacities deteriorate.

A retirement age is another possibility, although that does not take into account that people age differently.  We have ninety-year-olds in our society who are sharper and more fit than some sixty-year-olds.  We could do this, but I'm not sure what age you would make the retirement age.  And you would still have some politicians playing the actuarial game with it.

A second suggestion involves the number of Supreme Court justices.  That number is not constitutionally fixed.  There have not always been nine, for example.  There have been suggestions from some Democrats that the way to correct the current situation is to increase the number of judges when their party takes back power. 

That is a perilous path.  If the Democrats could do it, what would prevent the Republicans from doing it yet again when they retake power?  What's stopping them from doing it now?  This could escalate until we have a Supreme Court as large as the Senate!

I do think the Supreme Court should adjust over time, but it should be based on the country's population, and the volume of cases considered.  A precise measure could be legislated that takes future changes in the Supreme Court and makes them due to controlled criteria.


I don't know if this can be fixed entirely.  I do understand the system can't stand as it is.  We are losing the independence of another branch of government, moving further away from what the founding fathers envisioned.  Something has to done.  Term limits and controlled changes in the number of justices may be only a partial cure, but it is a check. 

It may not be enough to replace the civility we've lost.  But we have to start somewhere.