The Supreme Court is broken. Or, more accurately: the other two branches of the federal government broke it.
Before the sexual assault allegations against nominee Brett Kavanaugh were made public, I considered long and hard whether to oppose him. The matter would have been academic, as I do not live in a state where my senators’ votes were in question, but it still merited consideration as a citizen.
I decided I could not, but it troubled me. At the time, I thought that he seemed like a fine conservative choice, and while my own views run in the other direction, I knew that a good originalist was the most realistic option under the current president. I also am old enough to recall the days when Supreme Court confirmations really did seem beyond politics. In 1986, Antonin Scalia was confirmed 98-0, with senators like Joe Biden, John Kerry, and Ted Kennedy voting in favor. Five years later, Ruth Bader Ginsburg was confirmed 96-3, with the support of Phil Gramm, Trent Lott, and Strom Thurmond. Even in the contentious Obama years, Sonia Sotomayor was confirmed 68-31 and Elena Kagan 63-37.
I had hopes that we could get back to that time, when politicians’ and activists’ lip service about respecting and even supporting fair-minded people with differing ideologies could be proven true. The Merrick Garland debacle made that impossible. The Senate simply and boldly refused to do its duty under Article II, Section 2 of the Constitution, ignoring a presidential nominee entirely, on purely political grounds. Senate Majority Leader Mitch McConnell’s dubious insistence that he was only holding up the nomination because it came in the last year of a presidential term defies logic; Louis Brandeis and Benjamin Cardozo, giants of the bench, were nominated and confirmed in presidential election years.
The Court has always been politicized; Samuel Chase, a signer of the Declaration of Independence appointed by George Washington, was impeached on entirely political grounds. (If Kavanaugh is confirmed, he may become the second associate justice to ever be impeached, for better reasons.) In 1987, Biden and Kennedy blocked nominee Robert Bork, whose competence and intellect were not questioned, based on ideology.
But with Garland, a Rubicon was crossed, and seats on the Supreme Court became another scorched earth battle of our divided days. If Hillary Clinton had become president in 2017, it is possible a Republican Senate might have refused to act on any of her nominees. There are already whispers that the seat held by Anthony Kennedy could be kept vacant if Kavanaugh fails. What happens when the next justice dies?
The tactics of McConnell and Company make some sense, given that we have raised these nine judges to the status of demigods. Three of the current justices have been on the court for a quarter-century or more, and the Court’s power has grown as the Executive Branch has asserted privilege and Congress has abdicated more and more of its responsibilities. The president now has the power to nominate, and the Senate to confirm, the closest thing America has to absolute monarchs.
And these monarchs feel compelled to stay long past their prime out of fear for the fate of the nation. It’s become common for liberals to joke about keeping Ginsburg alive, but should Ginsburg, age 85, and Steven Breyer, age 80, feel compelled to stay on the job just because Donald Trump is president? There have been 41 justices who served at least 20 years; should anyone yield so much authority for decades on end?
Talk of limiting their terms has led to legitimate concerns about further politicizing the Court and the nomination process. But it need not do so. One interesting proposal, from a group called Fix The Court, would be to give justices 18-year tenures that expire on a rolling basis every two years, assuring two nominations during each presidential term. (There were no vacancies during George W. Bush’s first term, nor during Jimmy Carter’s.) It would require a constitutional change, and there would be many variables to work out — what to do in case of death or resignation; how to ensure a justice would not be swayed by temptations of post-term riches — but it’s worth at least considering.
Lysander Ploughjogger is a media analyst, freelance writer, and parent residing in Washington, D.C. He can be reached at [email protected].