I try very hard not to get too political here, otherwise I could let things devolve into me spewing my political views on everything. None of us want that, trust me.
But the past few weeks have once again made me give some thought to how we select our Supreme Court Justices. It’s messed up. The process maybe worked (and I would like to stress maybe) in past times, when presidents and senators acted with more honor and patriotism, but those times have gone away long, long ago.
Now presidents tend to just select someone who agrees with them on a couple of hot button issues, or someone they think will ignite their base and get them re-elected. Same thing with the senators. Very few of them ever really vote to confirm or not confirm based solely on the honest ability of a nominee, and instead it involves more of a political calculation.
So how do we fix this?
I don’t know that I have any more of a reasonable answer than anyone else, but the first thing I think we have to do is get rid of lifetime appointments. That would immediately make a nominee somewhat less scary. No matter your view on Roe v. Wade, the nominee would be gone in a few years and could be replaced, so they aren’t going to be an impediment for the next forty years. Whatever your view of LGBTQ rights, a new justice either blocking those or enabling equality isn’t going to be a permanent fixture for the rest of our lives.
So why do we have lifetime appointments, anyway? Integrity of the system, some say. So that a justice can be appointed and not rule based on what is most likely to keep them in the job. That makes sense, to a certain degree, but what we have wound up with is a bunch of old people sitting there and making decisions based on the ideals of the person and time who nominated them. Not ideal, obviously. But not without some merit, because it keeps rulings on what is and isn’t constitutional from swaying wildly from one president to the next.
So how do we make them less political, but still get rid of the lifetime appointments? I can only think of two ways, and neither of them are ideal, and neither would work completely. Both may be better than what we have, though.
My first thought is that we should let the process work sort of like it does now, a president nominates and the Senate confirms or not, but with some modifications. The modifications would be that the senate would have to have a vote on the nominee within 90 days or else the nominee would automatically be placed on the court provisionally and all other business in the Senate would be held up until the vote could take place. If there is not enough time for the Senate to investigate fully, they could request extensions in one month increments from the sitting president. Another modification with this system would be some kind of limit, say 8 years, as a term limit. At that point, during the next federal election there would be a simple retention vote for the justice. If less than 50% of the cast votes are votes to retain, the justice would be removed from the court. Justices would then face this retention vote during the soonest federal election at the end of each 8 year term they serve. The advantage of this 8 years is that it would automatically take the justice into at least the next presidency, if not beyond.
The other possible change I can think of that would at least somewhat de-escalate the doom and gloom prospects of a nominee would be if they had a flat limit of 10 years. That’s it. 10 and you’re out. Automatically goes into the next presidency, at least, and constantly refreshes the court with new people and new ideas. And we would usually have a mix of justices that have been on the court a few years and new justices, because of the offsetting times that justices retired or were confirmed to the court, which would mean it would slow any dramatic sways in rulings of the court. You’re not going to get a 9-0 ruling in favor of something, then a few years later end up with a 9-0 ruling against, usually. I would also add the variation that the Senate must give a nominee a hearing and vote.
Neither of these would fix the problem completely.
Neither of these is going to keep Senators from making up their minds completely ahead of time.
Neither of these is going to stop the Senate from not doing their due diligence when investigating a nominee.
Neither of these will prevent a president from nominating a completely unqualified hack.
What they both would do is at least limit the damage any one justice can do. They would limit the damage any one president could do.
I guess maybe the one rule that would need added under all circumstances, no matter whether any changes like these were implemented or not, is that if there is a vacancy on the court and a president nominates someone, no other nominee for this or any other Supreme Court vacancy could be considered until that nominee is voted upon. It is absolutely ridiculous that a nominee by a sitting president–any sitting president–could be just ignored. They are supposed to ‘advise and consent’, not ‘sit on and ignore’. And whatever a person’s political affiliations and beliefs are, we should all be ashamed when a nominee is just allowed to sit without so much as a hearing until the next president is in office. That is not how honorable people with patriotic intentions behave.
So yeah, those are my 2 cents (which, because of inflation, is now only worth 1/100th of a cent), and I don’t think any of this is ever going to happen. And it would probably require a Constitutional Amendment, which is almost certainly never going to happen. Too many people would have to agree to give up some of their power with these, and most people in office these days do not have the honor and patriotism to do so. But at least I was able to list the ideas out here, which has been somewhat cathartic, so something was accomplished.
Everybody have a good weekend!