The Supreme Court has long been an ideological institution, tacking between liberal and conservative interpretations of the law.
But now it’s becoming something far worse: an instrument of our poisonous, hyperpartisan politics.
Brett Kavanaugh was a particularly painful case in point. The nominee lit into Democrats during his confirmation hearings and called the sexual assault allegations against him “revenge on behalf of the Clintons,” before ascending to the court on a narrow near-party-line vote.
Now he sits on a tribunal more starkly divided than any in memory — five conservatives, all appointed by Republican presidents, and four liberals, all appointed by Democrats. And in the coming years, we’re sure to see a string of divisive 5-4 decisions that will further erode public confidence in the highest court in the land.
It’s time for Congress, and the American people, to seriously consider reform. And they should start with term limits.
The most widely discussed plan, endorsed by liberal and conservative legal scholars alike, would impose staggered 18-year terms on Supreme Court justices, with each president guaranteed a pick every other year.
Term limits wouldn’t spell the end of the partisan sniping, of course. But they would relieve some of the Sturm und Drang of the process. Appointments wouldn’t feel so consequential if they happened at regular intervals.
One ancillary benefit: We wouldn’t have so many justices serving into their 80s and 90s, when mental decline can set in.
The consensus view is that term limits would require a constitutional amendment. But some legal scholars argue that Congress could take action itself. Armed with that opinion, lawmakers should make a high-profile push. Even if they’re stopped in the courts, the effort could provide momentum for an amendment.
Another way to lower the stakes for any given Supreme Court nomination is to expand the court. There is no constitutional mandate for the size of the court. Indeed, it has fluctuated in size, from six to 10. A court of 15 or 17 justices could allow for a broader range of views and deeper expertise on the tricky technological and political questions landing before the 21st-century court.
Any talk of a larger tribunal raises legitimate concerns about “packing the court” — tilting it left or right with nominees of a particular political persuasion. But those concerns could be allayed if they were paired with another reform: a reimagined nomination process, built on bipartisanship.
One idea: The Senate could create a judicial nominating commission comprising the Senate majority leader, the Senate minority leader, and the chairman and ranking member of the Senate Judiciary Committee. Together, the panel of two Democrats and two Republicans could recommend four or five judges to the president, and ask him to choose one.
Making those picks binding would probably require a constitutional amendment. But the Senate could create a nonbinding commission right now. And it would probably have enormous sway.
The constitution requires the Senate to provide “advice and consent” on Supreme Court picks. This could be that advice.
A nominating commission could force some moderation on the president. But the Senate could also impose some moderation on itself by reinstituting the filibuster for Supreme Court nominees. A 60-vote threshold would prevent confirmation of the most controversial picks — picks like Kavanaugh.
Of course, the filibuster raises the specter of gridlock. But a little gridlock is a small price to pay for the legitimacy of the court. And if the Senate struggled to confirm anyone to the court, that could force more far-reaching reforms, like term limits or a judicial nominating commission.
We need a tempered, respected Supreme Court now more than ever. But hope for that kind of panel is slipping away. It will take a determined effort to pull it back, and it can’t start soon enough.