Here's One Good Way to Reform a Battered US Supreme Court

Supreme Court nominee Judge Amy Coney Barrett puts her mask on during her Senate Judiciary Committee on the third day of her Supreme Court confirmation hearing on Capitol Hill on October 14, 2020 in Washington, DC. Barrett was nominated by President Donald Trump to fill the vacancy left by Justice Ruth Bader Ginsburg who passed away in September. (Photo: Drew Angerer/Getty Images)

Here's One Good Way to Reform a Battered US Supreme Court

Defenders of the status quo undoubtedly will view any tampering as an assault on judicial independence. But the bitter partisanship of the current process has deeply undercut all notions of justice and fairness.

Like most Americans, I feel weary watching the partisan pit bulls in the US Senate Judiciary committee, sparring over the confirmation of Amy Coney Barrett. High courts and supreme judges are supposed to float above the partisan fray as paragons of fairness and a rules-based order.

Yet the Senate's broken confirmation gauntlet drags them into the partisan muck, instilling neither a sense of confidence or pride. And the Supreme Court itself often appears to be just another partisan body, an unelected legislature of nine, where "five votes beats a reason any day."

But there is a simple and straightforward fix to this judicial jungle: get rid of lifetime appointments to the US Supreme Court, in favor of extended term limits.

More than any other single factor, this "death 'til we part" constitutional requirement has been responsible for bruising and bitter confirmation battles. On the partisan chessboard, nailing down one of the nine spots is a major victory, especially if you can install a young partisan who will serve for decades.

Interestingly, for a young America's first twenty years of existence, Supreme Court justices averaged 13 years in service. Typical appointees were distinguished elders whose appointment was considered a capstone to a career in public service. For example William Howard Taft, after being president and a Cabinet secretary, was appointed to be Chief Justice at the age of 64.

But between 1989 and 2000, suddenly things changed. The average term for Supreme Court justice has doubled, to about 26 years. By the time she died, Justice Ruth Bader Ginsberg was nearly 90 years old and had served for nearly three decades. Justices Clarence Thomas and Stephen Breyer also have been on the high court for nearly 3 decades. In recent years, the average retirement age has risen from 67.6 years to 78.8 years, according to Northwestern University law professors Steven Calabresi and James Lindgren.

The confirmation process itself is nasty and unpleasant. As in past hearings, opponents of Ms.Barrett are sniffing high and low for some long-lost letter, speech, or paper that unearths a scandal, or at the very least provides a clue as to the nominee's true mindset. The senators snarl and parry back and forth across the partisan divide, with the nominee saying as little as possible, an unsatisfying defensive dodge.

Ms. Barrett, when asked her opinion about Roe v. Wade, the 1973 decision establishing women's constitutional right to abortion, declined to answer. She also declined to opine on her views of discrimination based on sexual orientation or Obamacare. The only way to know what she really thinks is to see what she does once she is on the bench with a lifetime appointment. The nation watches, bewildered, and wonders, "How can a person with no apparent opinions be fit for the highest court in the land?"

The nation also can't help but be creeped out by the morbid "deathwatch" of the vacancy process. Because of the uncertainty over awaiting lifetime-appointed judges to either resign or die, some lucky presidents get to tip their thumb on the scales of justice more than others. If Ms. Barrett is confirmed, she will be Donald Trump's third Supreme Court appointment; Barack Obama appointed two, but President Jimmy Carter didn't have an opportunity to appoint any Supreme Court justices.

It doesn't have to be this way. A survey of judicial appointment practices in other democracies suggests there may be better methods for selecting the U.S. Supreme Court.

For instance, some democracies employ judicial term limits. High court justices in Germany are limited to a 12-year term, and in France, Italy and Spain a 9-year term. There's American precedent for judicial term limits, with judges on the U.S. Court of Federal Claims limited to 15-year terms. Also, members of the Federal Reserve Board, shielded from politics because they oversee the nation's economy, serve 14 year terms, with its current chairman, Jerome Powell, appointed for a four-year term.

The length of a justices term is not established in the U.S. Constitution, which merely states that judges "shall hold their Offices during good Behaviour." That's pretty vague, and so Representative Ro Khanna (D-Calif.) has introduced the Supreme Court Term Limits and Regular Appointments Act, which seeks to limit future justices to serving 18 year terms. The bill would create a regular appointment process to allow every president to nominate a new justice to the Supreme Court, guaranteeing each president the opportunity to nominate two justices per four-year term. The luck of the draw would not allow a single president to dominate policy into the next generation. By lowering the stakes, that could also lower the heat of confirmation battles.

The toxic partisanship leads to other unsavory spectacles. In recent years justices have hung on into their frail and doddering years, hoping a new president might appoint a successor with similar political leanings. I'm sure recently-deceased Justice Ruth Bader Ginsburg would have enjoyed a few years of retirement, but she hung in there battling pancreatic cancer, hoping a Democratic president could appoint her successor.

There is a better way to deal with this. Other nations require that high court justices retire at a certain age. In Germany that age is 68, in Israel and Australia it is 70, in Canada it's 75. Seventeen US states have established a retirement age for judges at 70 years, including Minnesota, Alabama, Wyoming and Missouri. If applied to the current Supreme Court, Ginsburg would have retired a decade and a half ago, and three other justices, Stephen Breyer, Clarence Thomas, and Samuel Alito would have retired already.

Beyond judicial term limits and a mandatory retirement age, it's also worth considering multiple appointing authorities. In France, Germany, Spain and Italy, no single person or institution has a monopoly on appointments to the constitutional courts, and politicians are not the only appointing authority. Under the German constitution, candidates for high justices are named by the federal minister of justice and by a 32-member recruitment commission (of which 16 members are selected by the parliament and the other 16 by the justice ministers of the country's individual states).

Bipartisan appointments, which would require a confirmation vote of 60 out of 100 senators instead of a simple majority, also hold promise. A body as unrepresentative as the U.S. Senate should not be confirming lifetime appointments, especially by a simple majority vote. The Senate is still overwhelmingly a chamber of elderly white guys. Currently there are only 25 female senators out of 100, and 10 racial minorities (four Latinos, three Asian-Americans and three African-Americans).

The Republican Party also is overrepresented in the Senate, due to GOP success in low-population, conservative states in the West and South; states like Wyoming, with barely half a million people, have the same two Senators per state as high-population states like California, with forty million people. The current GOP majority was elected by 153 million Americans, while the Democratic minority was elected by 168 million Americans.

Since no political party usually would have 60 votes, that requirement would nudge the parties towards bipartisan consensus. For this reason, Spain uses a three-fifths majority for its judicial confirmations.

Defenders of the status quo undoubtedly will view any tampering as an assault on judicial independence. But the bitter partisanship of the current process has deeply undercut all notions of justice and fairness.

Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing and confirming authorities would help to decrease the partisanship and politicization, create a modest amount of Supreme Court turnover, and ensure that one president or party doesn't monopolize the process. In these times of extreme polarization, that would be good for these dis-United States of America.

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