3 Ways To Fix The Supreme Court Confirmation Process
It's time to change the rules. Everything that has happened since Antonin Scalia died has been awful.
Regardless of where you stand on the legal or political spectrum, I think we can all agree that the Senate confirmation process for Supreme Court justices is broken. Right? Neil Gorsuch is going to get filibustered. Merrick Garland couldn’t get a hearing. Lower-court appointments are obstructed whenever there is divided government. Whatever expectation of “non-partisanship” surrounding federal court appointments we had has been entirely, utterly ruined.
Is there any way to fix that?
We live in a divided country. We can agree that we cannot agree. If the GOP successfully steals this Supreme Court seat (and it looks like they will), we’ll have reduced the Court to a mere exercise in raw political power: Hold a Senate majority when the wheel of death comes around, get “justice” tailored to your political priorities and no others.
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If we want something better, we need to change the process. The Republicans have done good work since Antonin Scalia died, proving that the “constitutional” requirement of Senate “advice and consent” can mean, pretty much, whatever we want.
Here are three ways we might re-interpret the Senate’s role in the judicial confirmation process, listed in relative order of ease and practicality.
1. Three People Go Into A Room, One Supreme Court Justice Comes Out
The full Senate doesn’t even pretend to be informed about the real nuts and bolts of a Supreme Court nominee. They pretend like there’s a D or an R after their name, based on the President who nominated them, and vote accordingly. Even the members of the Senate Judiciary Committee — who are way more qualified than the full Senate — aren’t all versed in the minutiae of what really makes a Supreme Court justice fantastic.
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Let’s stop asking them to. Let’s dispense with the sham of the confirmation hearings entirely. Three people need to make this decision: The President, the Senate Majority Leader, and the Senate Minority Leader. The three of them need to figure it out. We should lock them in a room and not let them out to fundraise until they emerge with a consensus nominee.
If Mitch McConnell wants to be a little frog-bitch, fine. But he has to do it knowing that the next time his counterpart might play the role of obstructionist.
There are judges that would be acceptable to a President, and the leaders of both parties. Let’s nominate ONLY those justices, regardless of who happens to be in power at the moment of a justice’s death.
And if they can’t ever agree, the Court will just operate with fewer and fewer justices until the institution literally dies. Maybe that will inspire Senators to stop killing it.
Right now there are brilliant jurists who could never be on the Supreme Court because they’re not “reliable” enough to one side or the other. THIS IS A BUG, NOT A FEATURE. Under this plan, a justice who you honestly couldn’t predict on every issue would be a reasonable choice. Go, go Alex Kozinski.
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2. Each Party Gets Four Seats, 60 (or 80) Votes Required For The Swing 9th Justice
If the Court is just politics by other means, let’s just be honest about it. Let’s give the Democrats and Republicans four seats each. Four seats where they can appoint the hardest-core partisans they want. Neil Gorsuch, Goodwin Liu, LET’S DO THIS. And when the swing Justice dies, the President is obligated to nominate somebody who can get a super-majority from both parties.
In the current situation, that would mean that Scalia’s seat is one of the “Republican” seats, and Obama would have been obligated to nominate somebody acceptable to the Republicans. If Ginsburg dies these next four years, Trump would be obligated to nominate somebody acceptable to Democrats. And when Kennedy retires, the replacement needs to get ALL THE VOTES.
Right now, there are brilliant jurists who could never be on the Supreme Court because they’re viewed as too partisan by one side or the other. THIS IS A BUG, NOT A FEATURE. I’d have put Gorsuch in that category until Trump outsourced a stolen Supreme Court appointment to the Heritage Foundation. In normal times, there’s no way a president with a two-vote majority in the Senate could get a hardcore originalist like Gorsuch through.
Under this plan, every party would get to put their best legal lights on the Court. Then we’d have one middle guy to break the 4-4 ties — which still wouldn’t happen as often as people think. What’s not to like?
3. Court Packing
I’ve made the argument for court packing as retribution for Republicans stealing a Supreme Court seat, but there’s also a good civics reason for increasing the number of jurists on the Supreme Court.
There is no earthly reason why women’s rights in this country should depend on whether an 80-year-old has a stroke. There’s no good government reason for the status of gay people as people to be based on how Anthony Kennedy is feeling about retirement. The lower courts have more judges, and therefore their decisions, taken collectively, do not lurch wildly from one side to the other based on the randomness of one person’s death.
Why should the Supreme Court be any different? If we had 21 Justices, how often do you really think we’d see 11-10 decisions? How often would one person hold the balance of the entire Court?
If we had a packed Court, elections would still matter. Over eight years, the character of the Court could change. Slowly. But there would be less pressure on the Senate to seed the Court with only partisan followers. There’s no way McConnell would have obstructed Garland if he knew that there would be four or five or six justices to confirm when Republicans controlled the White House. There’s no way Schumer would filibuster Gorsuch if he knew that Gorsuch would just be one voice among many. A packed Court would allow for partisans, centrists, and maybe just maybe a world where Clarence Thomas wasn’t the “black” representative on the Supreme Court.
It’s not that the Supreme Court holds too much power, it’s that each individual justice holds too much power. If we diminished their power, then maybe the Senate could get back to confirming qualified jurists, instead of robed politicians?
Put simply: we can’t go on like this. The Supreme Court cannot continue to exist as the unelected arbiters of law if their decisions are viewed as solely the outcomes of partisan fighting. The Senate is RUINING the third branch of government. We have to stop them.
It’s time to change the rules. Everything that has happened since Antonin Scalia died has been awful.
Earlier: Republicans Can Bust The Gorsuch Filibuster, But Can They Take What Happens Next?
Lower-Court Judicial Nominations By The Trump Administration
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.
