After the Myers nomination fiasco, and with the Alito Confirmation Hearings now over, one thing has become patently obvious: The process of appointing Supreme Court Justices, which assigns to the President the privilege of nominating the candidates to the highest court in the land, and culminates in a confirmation process that is increasingly partisan and void of any real consequences, does not seem to serve the citizens’ best interests. A presidency tainted by serious judgment flaws and driven by a divisive agenda may be just the driver that we need to reconsider the process and to look for possible alternatives to the mechanism of selection for Supreme Court Justices.
The importance of the Supreme Court cannot be overstated. The Court has the power to deem federal and state laws unconstitutional and its decisions cannot be appealed. Although the Supreme Court itself has no power of enforcement, its power to overturn laws has been recognized throughout U.S. history. A ruling of unconstitutionality is the death knoll for a law under review. Congress and the Office of the President have historically abided by the Supreme Court's rulings. Most decisions taken by the Supreme Court affect the lives of citizens (and non-citizens alike) in very direct, very real ways. Roe v. Wade, the Court's ruling on abortion, is perhaps the most famous. Fourth Amendment cases are regularly brought in front of the Supreme Court, and the rulings have had a very tangible impact on citizens' rights in such occasions as police searches, arrests. Cases involving the Fourteenth Amendment, with particular regard to the due process clause, often come before the Court. One recent well-known Fourteenth Amendment case concerns the government’s ability to hold presumed enemy combatants at GITMO, for an indefinite term and without legal rights. Cases involving free speech, corporate malfeasance, environmental protection, and so on, have all come before the Court. So, you see, the choice of Supreme Court Justices is something that should concern every individual who lives in the United States.
Compared to the other two branches of government, the Supreme Court has some peculiar characteristics:
- Unlike members of the legislative and executive branches, Supreme Court Justices are not elected. Instead, all SCJs are appointed, by the President of the United States.
- Membership to the court is a lifetime appointment. Unless a Judge decides to or is forced to retire, only death limits the length of the Justice's term. (Although impeachment is a possibility, no judge has ever been forcibly removed from the Supreme Court.) Lifetime tenure is meant to ensure the independence of the Supreme Court from undue influence, particularly to prevent that fear of losing the job (and the income) might affect the justices' decisions.
- A consequence to lifetime tenure is the fact that there is no method to ensure any balance of representation on the Court, other than the balance which comes from the President and the Senate Majority belonging to different parties (at the time of a justice's confirmation).
- Another consequence of lifetime tenure is that a President may get to appoint multiple SCJs, or none at all.
- There are no explicit qualifications that a nominee must possess in order to be considered for a position on the Court (the prime example of this lack of standards has to be President Bush’s nomination of Harriet Myers.) Even so, most presidents choose candidates that come from the Judiciary, George W. Bush being the singular exception.
- The Court’s deliberations are not open to the public.
Considering the importance and the peculiarities of the Supreme Court, it should be easy to understand why the nomination and confirmation processes should be fair, transparent, and driven by good judgment. Since in the opening paragraph, I referred to George W. Bush's presidency as "tainted by serious Judgment flaws," I would like to qualify that statement now, by providing some evidence of my position to dispel accusations of blind and callous partisanship.
President’s Bush lapses in judgment have been numerous and well-publicized, but for the sake of brevity they can be adequately exemplified by a couple of separate incidents that took place over the summer of 2005. First, President's Bush botched nomination of Harriet Myers, a nominee so lacking in qualifications that she failed, in the three months that followed, to convince enough Republican Senators to grant her a confirmation hearing. She finally asked the President, whom she considers the most intelligent man she ever met, to withdraw her from consideration in September. More or less at the same time, at the end of August, President Bush chose to complete his scheduled vacation at his Crawford, Texas, ranch and to honor his fundraising appointments while the fiercest hurricane in recent history was barreling down the Gulf Coast, wreaking havoc on the lives and towns of the residents of three Gulf States. The Katrina debacle is epitomized by the famous quote about Brownie, the "heck-of-a-job"-doing crony that the President, in another momentary lapse of reason, had appointed as the head of FEMA, perhaps so that the agency and the lives of millions of Gulf Coast Residents could be drilled into the ground. (Drilling things into the ground, and out of it, is the President's well-known passion, if not his knack.) Incidentally, Brown's confirmation sheds an unflattering light not only on the judgment of the President, but also on the competence of the Senate that supported his confirmation, the same Senate which is about to confirm Judge Alito to the Supreme Court.
Now back to the Supreme Court itself. Consider the following facts:
- In my lifetime (I was born in 1965), there have been 8 Presidents of the United States: five Republicans, serving for a total of 26 years, and 3 Democrats, in office for 14 years.
- Since 1965, 15 Supreme Court Justices have been appointed (assuming Judge Alito will be confirmed by the Senate); Of those, 11 have been appointed by Republican presidents (including all three Chief Justices), 3 by Nixon, 1 by Ford, 3 by Reagan, 2 by Bush father, and 2 more by Bush son).
- Of the 15 Justices appointed over the last 41 years, 6 have been appointed by a President who was backed by his own party's Senate Majority, leaving enough room for appointments tied to strict ideological lines. The fact that some Justices have not conformed to a President's prior opinion of their ideological standing has so far saved the nation from disastrous consequences.
- Over the same forty-year period, there have been three Supreme Court Chief Justices: Earl Warren, William Rehnquist, and John Roberts, all of whom have been appointed by Republican presidents (Nixon, Reagan, and G.W. Bush, respectively).
- If Judge Alito is confirmed, 7 of the 9 current Justices will have been appointed by a Republican President (Ginsburg and Breyer have been appointed by President Clinton).
These statistics show that the composition of the Supreme Court has been slowly but surely moving to the right over the last twenty years. Considering that Judge Alito would replace Justice O'Connor, who has generally been regarded as a moderate, this move to the right would continue. If in 2008 a Republican is elected President and his party maintains the majority in the Senate, it is likely that the next Supreme Court Justice shall also be appointed by a Republican, if Justice Stevens were to retire.
In establishing three separate branches of power, the Framers of the Constitution manifested their intent to set up adequate checks and balances in our government. When the mood of the country moves so far in one direction, as has been the case over the last several years, as to deliver control of two of the three branches of government to one party, the role of the Supreme Court in maintaining a system of checks and balances becomes essential. An independent judiciary is essential to the preservation of the rights of all citizens in a democracy. But the Framers failed to recognize the danger of leaving the appointment of the highest judges in the land to politicians. If the judiciary is to be truly independent, it is hard to see how the selection of Supreme Court Justices by politicians guided by pragmatic, short-term considerations, could be desirable. In essence, leaving the appointment of Justices to the President is too much like leaving the fox in charge of the henhouse.
Given these premises, I would submit a few possible alternatives to the present system. These alternatives, taken singularly or in combination, are aimed at preventing the country from falling too deeply into the hands of one particular political faction and at preserving a healthy balance of opinions on the Supreme Court, to best protect the interest of the minority:
- Shifting the responsibility of choosing Supreme Court justices from the President to those who would seem more naturally qualified to choose them: a panel of peers (other qualified judges from Federal and District Courts.) The natural objection to this solution is that there is no guarantee that judges would be less partisan than politicians in their choice. However, it seems reasonable to think that judges might be less inclined to make appointments of a mere political nature than the President, who could use the nominations as a means of appeasing or luring electors.
- Replacing lifetime tenure with fixed tenure (let's say fifteen years). This would contribute to a greater variety of opinions and representation on the Court.
- When the House, Senate and President are from the same party, as is presently the case, the right to nominate Supreme Court Justices should be left to the minority party. This would lead to more moderate candidate being chosen, since no one could ever be confirmed without a fairly broad, bipartisan consensus.
Of course, each of these solutions would require a constitutional amendment. But at a time when a Marriage Amendment is being suggested by a number of partisan politicians in pursuit of political advantage, amending the constitution to limit or repeal the President’s power to select Supreme Court Justices might be an excellent idea. Centuries of history have shown us that politicians often appeal to the most extreme and the basest instincts in their electorate, and that they are increasingly driven by political calculation rather than by the pursuit of the common good. The Supreme Court has a chance to be a bastion of reason and moderation against manipulation, opportunism, and extremism, if only we empower it. But time is running out.