Whatever your opinion of the veracity of Dr. Christine Blasey Ford’s claims of sexual assault against Judge Brett Kavanaugh, and his vehement denials of any such act, one thing is clear: the Senate’s supposed evaluation and vetting of this Supreme Court nominee has become a starkly partisan affair.
As of the publication of this article, it seems all Republican senators are set to vote in Kavanaugh’s favor, despite multiple claims of sexual misconduct against the nominee. All Democratic senators are set to vote against his confirmation, even though Kavanaugh continues to deny any sexually-related wrongdoing. That divide isn’t random — it highlights how partisanship shapes our view of reality. Politics encourages epistemological dishonesty, and the United States Supreme Court, whose members are selected by elected officials, is caught in the grips of the degradation of our political discourse.
But it doesn’t have to be that way. The federal judiciary is designed to be nonpartisan and apolitical. Ideally, the process for selecting its members should be above politics, as well.
Over time, judicial selection has become more politicized
Under the Constitution, whenever a judicial vacancy occurs, the president has the power to nominate a replacement, who then must receive the “Advice and Consent” of the Senate before assuming said judgeship.
For much of American history, that meant earning at least 60 of 100 votes in the Senate — enough to break a filibuster. But in 2013, Senate Democrats, facing obstruction from their Republican colleagues, removed the 60-vote requirement for all appellate and district court nominees. After engaging what some have called the “nuclear option,” lower court nominees could be confirmed with a mere majority of 50 votes.
In 2016, Justice Antonin Scalia died, leaving a vacancy on the Supreme Court in the midst of an election year. Republicans, then in control of the Senate, refused to offer their advice and consent to Judge Merrick Garland, nominated by then-President Barack Obama. They argued no nominee should be vetted until after the results of the upcoming election, which would serve, in part, as a referendum on the process.
This act was without precedent in American political history, but wouldn’t have been that out of line had it occurred in a traditional parliamentary form of government. (In the United Kingdom, for example, Parliament often defers thorny political issues to the people, as it did with the 2016 Brexit Referendum. In some states, such as Missouri, the legislature does the same for proposed constitutional amendments.)
In 2017, Republicans, who had maintained their narrow Senate majority after the 2016 election, voted to remove the 60-vote requirement for Supreme Court nominees, allowing them to confirm Justice Neil Gorsuch over the objections of many Democratic senators.
Now, in 2018, the Senate is considering the confirmation of Judge Brett Kavanaugh to the Supreme Court, to fill the seat vacated by former Justice Anthony Kennedy, who retired over the summer. Republicans hold a 51–49 majority in the Senate; to approve Kavanaugh, they only need 50 votes.
Complicating matters is the upcoming midterm election, which is now less than six weeks away. Though Republicans are expected to retain their Senate majority, and the next presidential election isn’t until 2020, they would still prefer to seat the next justice as soon as possible. It takes many weeks — and sometimes many months — to complete a nominee’s confirmation. Should Kavanaugh’s nomination be withdrawn or fail to receive a majority vote in the full Senate, Republicans would be hard pressed to confirm a new justice before the next election. That would risk ceding the role of advice and consent to the Democratic Party, who, operating under the new precedent, may very well hold the seat open until the 2020 election.
Is it hypocritical for Senate Republicans to rush the current confirmation, taking place right before a midterm election, after vowing to wait to confirm Merrick Garland until the presidential election in 2016? Possibly. Actually, probably. But it is what it is. The political process has degraded the Constitution’s advice and consent mandate, encouraging more extreme, less carefully vetted judicial nominees to make their way to the Supreme Court — and for a divided government unable to come to a compromise to leave seats open for unconscionably long periods.
Merit-based selection would depoliticize the federal judiciary
There’s a much better way. Instead of having politicians select our judges, we should institute a system of merit-based selection. Such processes have already proven successful at the state level; most states switched to the merit system for at least some of their courts during the 20th century. The judges selected under this system have by-and-large helped to depoliticize state courts, remove seeming and actual corruption and produce more moderate, ethical jurists.
There are several variations of merit-based selection. In Missouri, the first state to adopt such a system, a commission composed of lawyers, laypeople and a sitting Supreme Court judge selects three candidates for any appellate or high court vacancy. From this slate, the governor then makes the final selection.
The commission has seven members. Three lawyers are chosen through internal elections of members of the Missouri Bar Association, and the governor appoints three laypeople. Each of Missouri’s three appellate court districts must be represented on the commission by both a lawyer and a layperson. The final position is filled by a Supreme Court judge, who, by tradition, is usually the chief justice.
Missouri’s merit system — nicknamed the “Missouri Plan” — also imposes a mandatory retirement age of 70 for all judges, and mandates that all new judges be placed on the ballot after their first year in office for a retention election as well as face retention after every full judicial term. The length of a judicial term varies from court to court. For judges on the state Supreme Court, one term is 12 years.
Such a system would work wonders at the federal level. In the past few decades, political jockeying over Supreme Court seats has worsened. Additionally, the way we allow politicians to appoint new justices doesn’t instill as much democratic legitimacy into the process as one might think. Due to the lifetime tenure of federal judges, one never knows when a current seat will open via death or retirement, making the process inconsistently democratic. For example, Obama successfully appointed a total of two justices in his entire eight years in office. If Kavanaugh is successfully confirmed, Trump will have appointed two justices not even two years into his first term.
Further, there’s evidence that the Supreme Court is becoming more polarized ideologically. Democratic presidents are appointing increasingly liberal justices, while Republican presidents are appointing increasingly conservative justices. That, too, is injecting politics into the realm of law. And, as detailed above, doing so in a troublingly inconsistent fashion.
In contrast, a judicial selection committee would be a steady hand, a moderating force that would cool tensions and promote more consensus-building jurists to the high court. In short, the commission would allow the American people to more easily compromise on justices in the middle of the ideological spectrum in a way the political process has ultimately failed to achieve.
It’s important to note that politics wouldn’t be completely removed from the process of selecting federal judges under a merit-based system. Presidents would still be able to appoint a certain number of commission members and would retain the final say on who ascends to the high court. Retention elections would give people a say on the adequacy of judges. Political concerns would merely be tempered, not ignored, through this more deliberative process — similar to how the Senate was devised to temper the more populist tendencies of the House of Representatives.
Perhaps one of the most important points of merit-based selection is the mandatory retirement age for judges. This, or, alternatively, set term limits for justices, would make the judicial selection process much less inconsistent and volatile. Sudden, unforeseen deaths of sitting judges would still occur, but they would be fewer, as justices above a certain age — more likely to die unexpectedly — would have already retired. And for those justices nearing the mandatory retirement age, we would be able to consider replacements well in advance of when they would actually need to assume their new roles, making the transitionary period from one judge to another relatively seamless.
Merit-based selection would require a constitutional amendment
Merit-based judicial selection is a sensible solution to the politicization of federal courts, but is it even possible to implement?
Possible, yes; likely, no. Such a drastic overhaul of the federal judiciary would require a constitutional amendment to revoke the Senate’s powers of advice and consent and establish the powers of a new selection commission.
In the age of increasing partisanship, merit-based selection would face an uphill battle, where mere majority support would not be sufficient. To alter the Constitution, Congress would need to approve a proposed amendment with a two-thirds vote in both the House of Representatives and the Senate — the latter of which would be voting to limit its own power. If somehow the amendment were to clear that enormous hurdle, it would still need to be ratified by an astonishing three-fourths of state legislatures to become an official part of the Constitution.
The only other way merit-based judicial selection could become a part of the Constitution is via a new constitutional convention. That process would pose its own dangers and is an even more unlikely scenario than getting an amendment though Congress.
Because of the supermajorities necessary for such an act, this author confesses that merit-based selection is never likely to pass. But it’s important to consider solutions to our current predicament nonetheless. Something is wrong with the American political process, and it needs addressing.
As the enlightened citizenry of this democracy, it is our responsibility to ensure the liberty of our own and future generations. The Constitution is but a pact between the people and their government. If we the people no longer believe it is working for our best interests, we reserve the right to fashion a new and better arrangement. ■