The things in our lives that trigger feelings of nostalgia usually revolve around our old high school (the word I euphemistically use for Juvie!) or summer camp, or maybe our old prom song. For my part, just hearing the opening bars of “Come Sail Away” by Styx can cause me to weep like an infant, out of both wistfulness, and profound regret that I had ever bought a stereo. Most people are not frequently burdened with debilitating nostalgia about how the United States Supreme Court used to be. But they should be.
The Supreme Court always decided controversial and consequential legal questions, but for much of our nation’s history, it was seen as what it was designed to be, the branch of government that was beyond the partisan wrangling of the day. Members of the legislative and executive branches have to notice and react to the current popular opinions, trends and fixations. They are the branches designed to represent the “people”, meaning those who elected them just recently and would be voting on whether to reelect them very shortly. The justices, appointed for life, could sit back in big, puffy chairs, and not give a ferret’s haunch (I invited that phrase! I’m sure it will catch on!!) about the latest public opinion poll.
The Court’s structural indifference to the momentary whims of the majority was deliberate, and absolutely critical. The Judiciary was the branch charged with protecting the rights of political minorities. It’s job was to stop even 99% of the population from infringing on a fundamental right of, or otherwise illegitimately mistreating 1%. Judges were supposed to, when appropriate, make highly unpopular decisions. This is why electing judges, like we do in Pennsylvania, is a terrible idea.
I still remember the moment I realized that electing judges was bad. I was President of the Lehigh Valley Young Democrats in 1991 and there was a hotly contested judicial primary in Northampton County. I was driving home from something, probably donating bone marrow, or drinking beer, one of the two. Suddenly, an add for one of the judicial candidates, whose name I won’t use, comes on the air. “Rapists, Murderers, Child Molesters, LOOK OUT! Tommy Schmuck-Face is coming to get you!” (Just because I’m protecting his name doesn’t mean I like him).
It would not be Judge Schmuck-Face’s job (he lost) to “come and get” anyone. His job would be to neutrally, and dispassionately apply the law. And if the law said that even someone accused of one of the crimes he mentioned had to be freed, then his job would be to free them. But Mr. Schmuck-Face felt he had to pander and be “tough on crime”, and to win an election, he was probably not wrong. But his pandering had nothing to do with the proper role of the judiciary.
Recently, I’ve come to realize that electing judges is not the only method of judicial selection that is inconsistent with the role of the Courts. The way we select Supreme Court justices is completely and utterly broken, and if we are going to have a functioning court in the future, it must be reformed.
The original theory isn’t bad. The President would select a justice to fill a vacancy, “with the ADVICE (often forgotten these days) and consent of the Senate”. The President would pick a well-respected legal scholar. And while there may be some ideological correspondence between the president and the nominee, it was secondary to credentials and demonstrated intellectual ability. Many presidents selected nominees of the other party. Nixon chose Democrat Lewis Powell, and as a strong liberal, my all time favorite justice (and my daughter’s name-sake), William Brennan, was appointed by Republican President Eisenhower.
Democrats would sometimes choose conservative justices. JFK appointed Byron White. And while FDR did appoint some unabashed liberals, like William Douglas, he also chose justices further to the right, like Frankfurter and Black. Republicans would sometimes choose a Harry Blackmun or a David Souter. Some justices, such as Benjamin Cardozo, would have been appointed by any president, regardless of party.
But as the rest of our society became more polarized, ideological and tribal, the Supreme Court followed suit. Now, any president is under great pressure to nominate the most right (and I’m sure to come, left) wing wack-a-doo they can find. And rather than choose an eminent legal mind with decades of experience, the trend is try to find 36 year old marathon runners with no paper trail.
In addition, we now see that the “advice and consent” of the senate has turned into the majority only allowing consideration of nominees of their own party while allowing those appointed by presidents of the other party to languish. This has led to the predictable Newtonian, and not unreasonable reaction of calls to “pack the court” if the aggrieved party takes control in the next election. Then, we can pack it again when the worm next turns and keep increasing the number of justices with every change of political power until we have several hundred justices and they can invade a small country.
There is a better way, and as faithful readers of this column have no doubt guessed, I have it!
Here’s what we should do: Change the number of justices one time, to 15. Six would be appointed by Republicans, six by Democrats. Since (assuming the confirmation of Amy Comey Barrett) there is currently a 6–3 Republican-appointed majority, Biden would get three appointees right away should he win. If a vacancy occurs in a seat held by the party without a President, their leader in the House would make the selection, with the Senate still confirming (but only to vet credentials and make sure they weren’t actually in the Illuminati, etc.). To prevent the Senate of one party from refusing to confirm any nominees of the other party, the nominating party would nominate three candidates, and if none are confirmed within 90 days, the party out-of-power could just select one of the three to go on the Court without senate confirmation.
The final three justices would be chosen by the twelve already on the Court. Since the appointing justices would be evenly divided by party, compromise and an emphasis on qualifications over ideology would be necessary. This system would have the following advantages:
= It would largely depoliticize the Supreme Court appointment process, by which I mean it would no longer be the shit-show it is now. A Republican could nominate as right-wing a loon (and the Democrats as left) as they wished. It’s their seat. This would dramatically reduce the incentive to have these expensive, misleading, and undignified confirmation wars.
= It would make a new vacancy due to a death or a resignation much less of a big deal than it is now. There are 15 justices rather than 9, so each one is somewhat less important.
= Every ideological voice would be heard, and nobody would feel that an ill-timed death will render them voiceless for a generation.
= As the old expression goes: 15 heads are better than 9.
= Since the three swing justices would be more neutral scholars due to their method of selection, we’d have a less ideologically predictable Court. Even the more extreme members of the Court would have to write opinions which could attract the centrists. So the Court’s opinions would have more buy-in from the public.
This is not meant to be a Democratic or Republican proposal. This is meant to be fair to both sides, assure future fairness, and end the increasingly bitter death-match that replacing Supreme Court justices has become. That said, the Nobel Prize Committee knows where to find me.