Fixing the broken Supreme Court

Linda Greenhouse:

In other words, it was raw politics all the way down, without even a fig leaf of a nonpolitical rationale. I’m not naïve. All presidents yearn for a Supreme Court legacy, and many tell fibs about the nominees they choose. President Reagan presented Robert H. Bork as a “moderate.” He wasn’t. President George H. W. Bush described Clarence Thomas as the best-qualified person for the job. He wasn’t. That’s all just part of the game. Of course the Supreme Court nomination and confirmation process is political; how could it be otherwise?

But the Republicans rewrote the rules well before their decision last week to abolish the filibuster for Supreme Court confirmation votes. Making an existing Supreme Court vacancy a highly visible part of an electoral strategy stamps the court as an electoral prize, pure and simple. In doing so, it places the court in a position of real institutional peril.

It’s a development that couldn’t have come at a worse time for the court, its legitimacy already threatened by a polarization that mirrors the political identity of each justice: The conservatives were all appointed by Republican presidents and the liberals by Democrats. That was not the case until recently.

And Ezra Klein:

Here, in truth, is where the past few years have left us. The minority party no longer holds a scintilla of power over Supreme Court picks. The majority party can and will jam whomever they want onto the Court, where that person will serve for life. But in times when the Senate and the White House are controlled by different parties — which happens fairly often — there’s almost no chance that any seat on the Court will be filled.

This is an insane way to manage one of the most powerful institutions in American life. Bu the decorous, gentle equilibrium of yesteryear was also nonsensical. There’s always been something bizarre about the idea that a position as important, as long-serving, and as irreversible as Supreme Court justice should be made based on qualifications rather than ideology.

Politics isn’t a résumé competition, it’s a contest for power, and the wielding of that power has real consequences. In practice, the Supreme Court decides how elections are funded, whether abortions are legal, whether millions of people will continue to have health insurance — if elected politicians and activist groups see its composition as a matter of life and death, that’s because it often is…

The core problem here is the stakes of Supreme Court nominations: They’re too damn high. Candidates serve for life — which, given modern life spans and youthful nominees, can now mean 40 years of decisions — and no one knows when the next seat will open. President Jimmy Carter served four years and saw no open seats. President George H.W. Bush served four years and filled two.

The result isn’t merely an undemocratic branch of government but a randomly undemocratic branch of government. And that randomness, and the stakes of seeing it play out in your side’s favor, makes it necessary to game the system in ways that are bad for everyone. It creates incentives for justices to stay on the bench long after the point at which they should’ve retired, in the hopes that they can outlast an ideologically unfriendly administration. It biases presidents toward nominating the youngest qualified jurist they can find, rather than the best jurist they can find.

So, what to do?  Ezra is for Supreme Court term limits.  Somehow, something both Rick Perry and Ezra Klein both endorse is either a really good idea or a really bad one.  In this case, I think it’s likely the former.  Personally, I find the “randomly undemocratic” aspect particularly compelling.

Of course, it’s highly unlikely we’ll ever see this happen, but that doesn’t mean it’s not a good idea.


About Steve Greene
Professor of Political Science at NC State

5 Responses to Fixing the broken Supreme Court

  1. R. Jenrette says:

    How about we term limit so the expiration date comes during the next president’s term, maybe a 15 year term? That covers a two term president plus his VP succeeding for one term. That way, it seems as if some moderation in judges would be encouraged as it’s likely that the president when the term expired would be of the other party.

    With more judges being appointed, maybe a law degree from some place other than Harvard could be considered.

  2. rgbact says:

    I agree on term/age limits.. Stakes are too high right now, the temptation for raw politics is too great The problem of course is any system will benefit a side…that won’t be interested in negotiating it away. So, good luck changing anything.

    The ultimate problem is partisanship demands short term victories. Neither party is capable of considering a potential long term problem over a short term win. Hence, Democrats had too block Gorsuch just for the short term “win”…and destroy the ability to filibuster forever.

    • R. Jenrette says:

      A friendly rebuttal. Mitch McConnell was able to turn a series of seemingly short term victories over eight years into a long term GOP goal – to make it easier for the wealthy to “buy” the federal government and pave the way for a Republican President and his fellow oligarchs.
      The Democrats filibustered the Gorsuch nomination with no down side and the upside of keeping their base energized. After all, if you are fired up and ready to go and your leadership acts in a spineless way, all that energy just fizzles out.

    • Steve Greene says:

      You just make it take effect starting 8 years away. Democrats had to block Gorsuch, not for the “win,” but because it was the appropriate response to Garland.

      • R. Jenrette says:

        I want to avoid the Bush the father situation with the 15 year limit. I don’t think 8 years is long enough to really develop a Supreme Court Justice. After all, when they change, they do seem to drift to the liberal side.

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