Judicial Confirmation Process Needs 21st-Century Updating

Supreme Court confirmations are a good time to reflect on some basic precepts of our "separation of powers" system of government. The justices are supposed to be "above the law," but as various decisions have shown, unfortunately that is not always the case. Too often the nine black robes reveal themselves to be just another partisan legislature -- but an unelected one at that. In fact, in recent years following various decisions, many frustrated legal scholars have shaken their heads and muttered: "Five votes beats a reason any day."

The obvious partisanship of many decisions casts the Supremes in a whole new light. If it's going to act like a legislature, then should its members remain unelected? Or if appointment remains the preferred selection process, should it be for a life term? And should the president remain the sole appointing authority, and the highly unrepresentative Senate the sole confirming authority?

Currently the president appoints and a majority of senators confirms Supreme Court nominees. But multiple appointing authorities and higher confirmation thresholds would bring some balance to this "judicial legislature."

Something like Germany's 60 percent threshold for confirming justices would give the two major political parties a say over each other's appointments and help prevent a partisan takeover of the court.

Requiring 60 votes also would be an acknowledgment of how unrepresentative the U.S. Senate is. Of 100 Senators, only 17 are women and five are racial minorities. A strong case can be made that a chamber as unrepresentative as the Senate should not be confirming lifetime appointments -- especially not by simple majority vote. Doing so only ensures that the unrepresentative features of the Senate spread to the high court.

Indeed, the subject of proportional representation on the Supreme Court -- that is, the notion that the Justices should, to some reasonable degree, reflect the ideological makeup of the country -- is one that has not been considered enough. Of the current eight justices, it is likely that six are Republicans and two are Democrats, in a nation where partisan sympathies are fairly evenly divided and Democrats hold a decisive majority in the Congress. Six of the current justices were appointed by Republican Presidents, only two by a Democratic president.

The term "liberal" always has been used rather loosely when it comes to the Supreme Court. In the narrow ideological spectrum applied to the court, Justice John Paul Stevens, who was appointed by a Republican president and voted to reinstate capital punishment and to oppose affirmative action in the Bakke case, is a liberal. So is retiring justice David Souter, who voted to uphold a ban on gay Irish groups marching in the St. Patrick's Day parade, and also voted that federal authorities may prosecute sick people who smoke marijuana on doctors' orders. A Supreme Court liberal is nothing like a Ted Kennedy or Jesse Jackson liberal.

In addition, Norman Ornstein and others have written eloquently about the need for judicial term limits. As anyone who has watched the bitter partisan war that plays out over lifetime appointment to a court that has no retirement age, it is easy to see why. Justices are serving longer and longer terms. Between 1941 and 1970 the average justice's tenure was 12.2 years; since then, the average term has been over 25 years. The average age of a justice leaving office has risen from 67.6 years to a very elderly 78.8 years. Currently two justices have been on the Supreme Court for more than 25 years. At 54 years of age, Judge Sonia Sotomayor easily could serve for three decades, as could Chief Justice John Roberts.

Recognizing the Supreme Court as an ideologically skewed judicial legislature helps us to understand how badly this crucial body needs to be updated for the 21st century. Judicial term limits, mandatory retirement ages, higher confirmation thresholds and multiple appointing authorities would ensure not only brilliant legal minds but also some balance of legal perspectives on the high court. Those reforms also would create a modest amount of turnover on the Court and ensure that one party or president does not stack it. And that would be good for America.

Steven Hill is director of the Political Reform Program at the New America Foundation and author of "10 Steps to Repair American Democracy" (www.10Steps.net)

Different versions of this article were published in Roll Call, The Guardian (UK), Miami Herald, Cleveland Plain Dealer, Durango Herald News, Santa Monica Mirror, Colorado Springs Independent and other places.

Comments

[NotStarvingArtist]

And while we're at it, let's overhaul the Senate and the Congress. Like any job, there should be minimum education and experience qualifications. Term limits and a mandatory retirement age should be considered as well. Of course, getting them to vote these restrictions on themselves will be quite a challenge.

[LLWillis]

An excellent article. The politicization of the US Supreme Court ought to be deeply troubling to the American people. If rhetoric is any indicator, it does not seem to be an important consideration that the composition of the court be 'representative' of the electorate, even though equal rights and equal opportunity are supposed to be important constitutional values. Achieving 'representation' is difficult when justices are appointed for life, and with a not-so-hidden political agenda.

For what it's worth, take whatever lessons you will from the experience of Canada, another modern civilized democracy with a similar history. The Supreme Court of Canada also has nine judges, chosen to provide regional representation from across the country. Justices retire at age 75, so the effects of turnover can be seen in the composition of the court, which includes four female justices, one of whom is the Chief Justice. Justices are chosen primarily based on their legal qualifications.

Admittedly, our constitutional issues are less tangled. When the Canadian constitution was 'repatriated' from Britain in 1982, the Charter of Rights and Freedoms was added. It was drafted with a 20th century view of individual rights, and the definition resides at the federal level. Essentially, rights is rights. If you are a human being, you have them. Race is less of a divisive issue because our immigrant population comes from around the world, with no large blocks similar to the US African American and Hispanic groups.

[MaximMaximus]

What I think is that there are two pseudo-int­ellectuals here who are making nonsensical comments. You two seem to be a perfect fit for each other. Why don't you take a hike so that the "bar" is raised where it usually is in this blog? Come on now. Move it!

[libwingoflibwing]

Whom are you referring to?

[libwingoflibwing]

How about nine year terms on the Supreme Court. Every year a new Justice starts a new term. The senior Justice is Chief Justice that year.

The Justices are chosen randomly from all the Appeals Judges with at least five years of being on the U.S. Appeals bench. Appeals Judges themselves would be chosen randomly from all qualified Judges throughout the country. The qualifications include years of experience on the bench, graduating in the top quartile of their class in an accredited Law School, an FBI review to insure no criminal background, a mental health evaluation, and passing tests that are like the next level of the bar, "superbar," the bar is for being a lawyer, this superbar is for being a U.S. Appeals Judge.

What do you think?

[johnashman]

Unless the Congress has term limits, your plan throws the balance of power ever towards increased congressional control. Congress has been gathering power for 150 years against the will of the constitution. And if you increase the 'threshold', that means that liberals will ALWAYS defeat anyone who believes in the constitution as written. What is the point of this? Prevent *any* conservative judges? Judges are *supposed* to be conservative. They are upholding and interpreting existing law, not treading new territory nor leading us towards a brave new world. They are the counter balance to 'leadership'. They make sure that where we are being led conforms to the law and constitution. Turn them into liberals and we have no rudder and can be led kicking and screaming in any direction the congress chooses.

What is your ideology and what do you wish to accomplish?

[Percolater]

Strict construction is a relative term. The Supreme Court interprets the Constitution in light of changing circumstances.

Hamilton had written that through the practice of judicial review the Court ensured
that the will of the whole people, as expressed in their Constitution, would be supreme over
the will of a legislature, whose statutes might express only the temporary will of part of the
people. And Madison had written that constitutional interpretation must be left to the
reasoned judgment of independent judges, rather than to the tumult and conflict of the
political process. If every constitutional question were to be decided by public political
bargaining, Madison argued, the Constitution would be reduced to a battleground of competing
factions, political passion and partisan spirit.
Supreme Court’s responsibility to overturn
unconstitutional legislation was a necessary consequence of
its sworn duty to uphold the Constitution. That oath could not be
fulfilled any other way. “It is emphatically the province of the
judicial department to say what the law is,” he declared.
In retrospect, it is evident that constitutional interpretation
and application were made necessary by the very nature of the
Constitution. The Founding Fathers had wisely worded that
document in rather general terms leaving it open to future elaboration
to meet changing conditions. As Chief Justice Marshall noted
in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own
application “would partake of the prolixity of a legal code, and could scarcely be embraced
by the human mind.