Republicans have in recent years successfully politicized what should be an apolitical process: the nomination and confirmation of Supreme Court justices.
Liberal Democrats have plans to make things worse.
Consider the following from United States Supreme Court Chief Justice John Roberts’ opening statement to the Senate Judiciary Committee during his 2005 confirmation hearing:
“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
“Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.”
Here Roberts eloquently summarizes the ideal to which all justices should aspire: maintaining passion for the rule of law while suppressing passion for any particular political or social agenda.
Yet this is an ideal few if any humans can attain.
Law is written in black and white but enforced and interpreted in shades of grey.
Almost no one pursues a legal career due to love of minutia and technicalities.
Most cannot help but develop philosophical underpinnings regarding what the law should accomplish and how it should be enacted or, if need be, restrained.
Competition among various such philosophies is at the heart of politics. Despite their best efforts, even the most conscientious justices interpret the law, at least to some extent, within the context of their political views.
Supreme Court justices are nominated by presidents and confirmed by senators not only free to act in accordance with their political bias, but expected to do so.
These justices are then empowered to uphold or overturn the edicts of said presidents and senators. It is no surprise the judicial nomination process is often highly politicized.
The Founding Fathers attempted to elevate justices above the political fray by requiring a two-thirds confirmation vote in the Senate and by providing lifetime appointments.
Critics argue this also insulates justices from accountability and gives outsized influence to whichever political party holds power when Supreme Court vacancies occur.
In our (primarily) two-party system those critics tend to emerge in one party whenever the other gains an advantage.
Most recently it has been advantage Republicans.
In a blatantly political move at the end of the Obama administration, Republican senators refused to consider Merrick Garland, Obama’s choice to replace Antonin Scalia on the Supreme Court.
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Donald Trump ran partially on a promise to deliver more conservative justices, and produced in the persons of Neil Gorsuch and Brett Kavanaugh.
“You cannot have a democracy when one side is stealing the courts,” said Aaron Belkin, a political science professor at San Francisco State University who is pushing to add four justices to the nine-member high court.
Democratic presidential candidate Pete Buttigieg has proposed a 15-member Supreme Court composed of five Democrats, five Republicans and five chosen by the other 10.
Other candidates have indicated openness to similar “court-packing” reforms as well as to instituting term limits for justices.
These changes would make the court more political rather than less. Such a shameless move by Democrats would surely lead to equally brazen Republican payback at the first opportunity.
Even the Supreme Court’s liberal icon is unconvinced.
“If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to,’” said Associate Justice Ruth Bader Ginsburg.
So is there a better way to countermand the politicization of the Supreme Court?
Perhaps, but instituting it would be a heavy lift (sigh) politically.
Instead of adding justices, change how they’re chosen to a variation on the Iowa method.
Begin with a judicial nominating committee composed of the six highest-ranking senators from each party, including the vice president.
This panel would develop a list of three nominees to forward to the president, who would make the final selection.
Nominees would need at least nine votes to make the cut, requiring some level of bipartisan agreement and ensuring the list would of necessity include only relative centrists.
Neither party could hope to obtain political advantage by expediting or delaying the process regardless of the balance (or imbalance) of power in Washington.
Which is precisely why it’s unlikely to happen.
Instituting this plan would require a constitutional amendment and a rare commitment to governance before gamesmanship.
Political leaders jumping on this bandwagon would demonstrate they are looking to foster true reform rather than simply gain the upper hand.
Frankly, I doubt there will be many takers.