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Time to Amend the Constitution to Depoliticize Judicial Appointments

28 Jun 2018

Can’t you feel it coming? The fuse is lit and the hypnotic hiss is curving toward the powder keg called “Armageddon.” There are no wise feet to stomp on the flame and no scissors to cut the line at the last second. The explosion could be unlike anything we have seen since the violence of the late 1960s. Justice Kennedy has decided to retire and the political world appears ready to combust.

Dire, perhaps, but consider the following. We are polarized. Our parties are unusually divided, with Democrats and Republicans now convinced not only of their own righteousness, but of their opponents’ perfidy. Our leaders argue from opposing foundations and have little room for compromise, especially since they are elected by voters who see compromise as equivalent to capitulation.

The political rhetoric is toxic. To prove their bona fides, our politicians attack with throats full of rage. Few of them, at least in Congress, face strong challengers from the opposing party. They have no need to mollify moderates. Social media outlets give anonymous platforms to any crank regardless of hostility or irrationality.

Both sides, the right and the left, have also invested our least political branch of government with nearly divine authority. We expect and allow the Supreme Court to examine and rule on our most contentious and sensitive issues. Privacy, abortion, same-sex marriage, and religious liberty are just a few of the matters the Court manages. While court decisions shift the debate, they do not end it.

Our federal judges are, by design, pulled out of the political process to a degree. They are mostly unaccountable to voters and office holders once on the bench. This, in theory, gives them the latitude to handle matters of passion in a detached, objective way. But the culture wars have made the Court more political. Now the battle revolves around the confirmation process and since Kennedy was the ostensible “swing vote,” the stakes are even higher. Both sides see this as a tipping point. Conservatives believe they are about to roll back the trappings of the sexual revolution and progressives fear they might succeed.

There are two ways out of this moment. We could make judges more accountable to the voters. After all, we elect state and local judges, so why not federal judges? This would be, as Madison stated in Federalist 10, a remedy worse than the disease. If our liberties are designed to be disconnected from the whims of the ballot box, our judges, who are required to interpret them, should be as well. Besides, are we ready for Judges Judy or Jeanine to ascend to the highest court? Recent events suggest anything is possible.

Instead, we should consider a mild change in how federal judges are confirmed. The framers of our Constitution envisioned the United States Senate as something of an aristocracy. Senators have longer terms of office, must be marginally older, and a more impressive set of powers than their compatriots in the House. The Senate was supposed to be slower and more deliberate, able and encouraged to take the long view on affairs foreign and domestic. Their method of selection was also critical. Senators were not chosen by the people directly, but by state legislatures. This, ideally, disconnected them, at least a touch, from the passions and prejudices that sometimes snake through the electorate.

The filibuster, while not in the Constitution, furthered this unique role. By requiring 60 votes to close off debate, the filibuster magnified moderates in both parties. Those willing to work across the aisle not only helped get things done, but their existence provided a strong incentive for the majority party, which generally has fewer than 60 votes, to craft legislation that could appeal to at least some elements of “the other side.”

All this has changed. Since the Seventeenth Amendment, Senators are chosen directly, so they are now, more than ever, perfect vessels for the wrath of the people. This was tolerable when both parties were fairly diverse. But as the parties have drifted apart, so have the Senators. Unsurprisingly, we have seen a severe weakening of the filibuster. The “reconciliation” process allows some budgetary matters to be pushed through without the threat of a filibuster. And, of course, the filibuster has been “nuked” in relation to judicial appointments. This means presidents, so long as their parties have minimal control of the Senate, have little constraint on who they might nominate, and Senators have no motivation to compromise their rhetoric or actions.

My solution? Write the filibuster requirement into Article 2 of the U.S. Constitution. In fact, I’d go one step farther. Article 2 requires a two-thirds vote for the ratification of treaties. Let’s put judicial nominations there. Article 2 would read, the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties and federal judicial appointments, provided two-thirds of the Senators present concur…”

This would not eliminate strong justices from the Court. Justice Ginsburg enjoyed 96 votes, while Scalia tallied 98. Chief Justice Roberts earned 78 supporters. It would require the President and Senate to approach the nomination process more soberly. They would have to measure the political context carefully. They would need to consider the connection between nominees, the “opposing” party, and the public more fully. This would, in its own way, restore a touch of civility to the proceedings over the long haul.